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JOHN MARSHALL 



ALLAN B. MAGEUDER 




• J ^ J 



BOSTON AND NEW YORK 
HOUGHTON, MIFFLIN AND COMPANY 

^\)Z Biterjitic |?re??, Cambridge 



Copyright, 1885, 
By ALLAN B. MAORUDER. 

All rights reserved. 



The Riverdde Press, Cambridge, 3Iass., U. S. A. 
Electrotyped and Printed by H. 0. Houghton & Company. 



PREFACE. 



The great fame of John Marshall, as Chief 
Justice of the United States, has so far over- 
shadowed the remembrance of his other ser- 
vices to his countrymen, as to render many of 
them oblivious of his public career as soldier, 
legislator, envoy, historian, and statesman, both 
previous to and after his elevation to the first 
place on the Supreme Bench. These pages are 
designed to supply these almost forgotten fea- 
tures of his active, busy life, in addition to 
sketching his more familiar career on the 
bench. 

The author has received material aid from 
the immediate descendants and family connec- 
tions of the Chief Justice, the admirable me- 
morial discourse of Judge Story, and the ex- 
cellent memoir by Mr. Horace Binney of the 
Philadelphia Bar. He is also largely indebted 
to the industry and discriminating research of 



Vi PREFACE. 

Mr. Henry Flanders, in his " Lives and Times 
of the Chief Justices," of which he has freely 
availed himself for facts and incidents which 
lend interest to the narrative. 
Stephens City, Virginia. 



I 



CONTENTS. 



CHAPTER I. 

PAGB 

Youth .1 

CHAPTER IL 
Military Service ....«•• 9 

CHAriER III. 
At the Bab 25 

CHAPTER IV. 
In the State Legislature 49 

CHAPTER V. 
In the Constitutional Convention of Virginia 57 

CHAPTER VI. 
Return to the Bar 88 

CHAPTER VII. 
The French Mission 101 

CHAPTER VIII. 
In Congress .131 



Vlll CONTENTS. 

CHAPTER IX. 

PAGE 

In Mr. Adams's Cabinet 150 

CHAPTER X. 
Chief Justice 161 

CHAPTER XL 
Tbial of Aaron Burr for High Treason . . 202 

CHAPTER XII. 
The "Life of Washington" 232 

CHAPTER Xm. 
In the Virginia State Convention . . , 242 

CHAPTER XIV. 
Opinions: Personal Traits . . . . ^ 255 

CHAPTER XV. 
Death . 279 



JOHN MAESHALL. 



CHAPTER L 

YOUTH. 

John Makshall was born on the 24th day 
of September in the year 1755, at German- 
town, a roadside village in what was then the 
frontier county of Fauquier in the colony of 
Virginia ; the place is now known as Midland^ 
a station on the Virginia Midland Railroad. 
Attaining his majority in 1776, he entered 
active life at an eventful period. Colonel 
Thomas Marshall, his father, was born in the 
county of Westmoreland in Virginia, in what 
is still known as the Northern Neck, — a pen- 
insula thus named by reason of its location 
between those bold and beautiful rivers, the 
Potomac and the Rappahannock. Of this coun- 
try the late Governor Barbour of Virginia was 
wont to say : " It is the prolific soil that grows 
presidents," — in allusion to the fact that when 
these words were uttered Westmoreland had 
1 



2 JOHN MARSHALL. 

contributed to the national service Washington, 
Madison, and Monroe, three out of the five per- 
sons who up to that time had held that rank. 

What Boston was to Massachusetts, West- 
moreland was to the other counties of Virgi- 
nia ; the birth-place and the home of the 
Washingtons, the Lees, the Masons, the Talia- 
ferros, the Marshalls, the Madisons, the Mon- 
roes, the Graysons, the Roanes, the Beverlys, 
the Bankheads, the Balls, the McCartys, the 
Blands, and the Carters, it became a sentinel 
on the watch-tower of liberty, — the herald to 
announce the approach of danger. It was here 
that the friends of freedom first perceived the 
danger-signal, as early as 1765, the date of the 
first stamp act. They drew up the earliest 
Declaration of colonial rights, which was writ- 
ten by Richard Henry Lee, whose name, signed 
first upon the page, is followed by one hundred 
and fourteen others of the chief men of the 
county. This is said to have been the first 
public association in the land for resistance to 
that act. 1 

The Marshall family were of British descent, 
having emigrated from Wales to the colonies. 
They were distinguished by their intellect and 
force of character. The grandfather of the 

1 See Bp. Meade's Old Families of Virginia, vol. ii. p. 434, 
Appendix. 



YOUTH. 3 

Chief Justice was John Marshall, who left four 
sons, the most distinguished of whom was 
Thomas, father of the great judge, whose tal- 
ents and character gave him a high rank in 
the colony. He was born in 1732, the year of 
Washington's birth, and was sent to school at 
the academy of Archibald Campbell, a Scotch- 
man, descended from a branch of the family of 
the Duke of Argyle, a clergyman of the Epis- 
copal Church, and a thorough scholar. Thomas 
Marshall became a land surveyor, and accom- 
panied Washington, who was his neighbor and 
had been his school-mate, in his surveying ex- 
peditions for Lord Fairfax. He was afterward 
a lieutenant of Virginia troops in the French 
war, and was present at the defeat of Braddock. 
He was several times elected to the Virginia 
House of Burgesses, never failing to obtain 
the suffrages of the people, whose respect and 
confidence he held in the fullest measure ; and 
he warmly participated in all the earliest 
movements to encourage the colonists in resist- 
ance to British tyranny. When the call to 
arms was made in Virginia, he was one of the 
first to offer his services, and was a field officer 
of the first regiment raised. In his first en- 
gagement, at the battle of the Great Bridge 
in 1775 with a detachment of British troops 
under Lord Dunmore, he was distinguished for 



4 JOHN MARSHALL. 

valor and good conduct. Afterwards he suc- 
cessively commanded in the Continental line 
the Third Virginia Infantry and the First Vir- 
ginia Artillery, as their colonel, serving most 
of the time with Woodford's brigade. He was 
in the battles of Germantown and Brandywine, 
having three horses killed under him, and in 
the latter engagement contributed largely by 
his courage and skill to save the American 
army. He endured, with three of his sons, all 
the hardships of the winter campaign at Valley 
Forge. Subsequently he was ordered to join 
the southern army, and with a part of his regi- 
ment he was taken prisoner at Charleston. 
During the term of his parole he made his first 
visit to Kentucky through the wilderness, in 
1780. Returning to Virginia, he remained to 
the close of the war, and in 1785 emigrated 
with the younger members of his family to Ken- 
tucky, near Versailles, in Woodford County, 
which he procured to be named Woodford; 
after his old friend and commander. In the 
early history of Kentucky he bore a scarce less 
active, distinguished and patriotic part than he 
had done in his native State. He died in 1806 
at the home of his son. Captain Thomas Mar- 
shall, in Mason County, and lies buried in the 
family cemetery near Washington, in that 
State. 



YOUTH. 5 

In token of his great bravery and patriotic 
services, Colonel Marshall was presented by- 
Edmund Randolph, Attorney General in Wash- 
ington's cabinet, and also Governor of Virgin- 
ia, with a splendid sword, now in possession of 
one of his descendants in Kentucky, and pre- 
served as a precious heir-loom in the family. 

The wife of Colonel Thomas Marshall was 
Mary Isham Keith. Her father, James Keith, 
was an Episcopal minister, and cousin-german 
to the last Earl Marischal and to Field-Marshal 
James Keith, one of the most valued of the 
great Frederick's lieutenants, who saved the 
Prussian army and fell at Hochkirch, " as poor 
as a Scot, though he had had the ransoming of 
three cities." 

Of the mother of the Chief Justice we know 
but little more than that she bore fifteen chil- 
dren, — seven sons and eight daughters, — and 
that she reared them all to mature years. She 
could have had little opportunity to make any 
other record for herself, and could hardly have 
made a better one. Of the fifteen, John Mar- 
shall was the first born. The date of the re- 
moval of Colonel Thomas Marshall from West- 
moreland to Fauquier is not certainly known. 
It must have been soon after his marriage, for 
his son John was born, as we have seen, at Ger- 
mantown in Fauquier, in 1755. Subsequently 



6 JOHN MARSHALL. 

he acquired, and moved to, the fine estate of 
Oak Hill, in another part of the same county, 
which continued to be the seat of the Marshall 
family up to a recent date. Colonel Marshall 
was a gentleman of intelligence and plain edu- 
cation, and devoted himself personally to the 
training of his children. He had a private 
teacher from Scotland, a Mr. James Thompson, 
a clergyman, who came to this country and 
took up his residence in the family of Colonel 
Marshall in 1767, and instructed his sons, John 
and James, and others. 

Of Colonel Thomas Marshall, Judge Story, 
deriving his information from contemporary 
sources, says : " He was a man of uncommon 
capacity and vigor of intellect, and though his 
original education was imperfect, he overcame 
this disadvantage by the diligence and perse- 
verance with which he cultivated his natural 
endowments ; so that he soon acquired, and 
maintained throughout the course of his life, 
among associates of no mean character, the 
reputation of masculine sense and extraordi- 
nary ability. No better proof indeed need be 
adduced to justify this opinion than the fact 
that he possessed the unbounded confidence, 
respect, and admiration of all his children at 
that mature period of their lives when they 
were fully able to appreciate his worth and to 



YOUTH. 7 

compare and measure him with other men of 
known eminence. I have often heard the 
Chief Justice speak of him in terms of the 
deepest affection and reverence. I do not here 
refer to his public remarks, but to his private 
and familiar conversations with me, when there 
was no other listener. Indeed, he never named 
I his father on these occasions without dwelling 
on his character with a fond and winning en- 
thusiasm. It was a theme on which he broke 
out with a spontaneous eloquence ; and in the 
spirit of the most persuasive confidence, he 
I would delight to expatiate upon his virtues 
I and talents. ' My father ' (would he say with 
kindled feelings and emphasis) ' my father was 
'i a far abler man than any of his sons. To him 
' I owe the solid foundation of all my own suc- 
I cess in life.' " ^ 

^ John Marshall early evinced a strong love 
J for English literature, especially in the depart- 
ments of poetry and history. At the early age 
of twelve it is said that he knew by heart a 
j large portion of Pope's writings and had made 
I himself familiar with Dryden, Shakespeare, and 
Milton. Subsequently, at the age of fourteen, 
1 he was sent to school in Westmoreland County, 
j to the classical academy of the Messrs. Camp- 
' bell, in which formerly his father and Genera] 

1 Discourse on the Life of Marshall, p. 9. 



8 JOHN MARSHALL. 

Washington had been pupils, and where James 
Monroe was one of his fellow-students. Re- 
turning home at the end of his term, he con- 
tinued his study of Latin, reading Horace and 
Livy. He pursued these studies under the di- 
rection of his old preceptor, Mr. Thompson, who 
was an accomplished classicist. Fortunately he 
was also fond of athletic sports and exercises in 
the open air. He began the studj^ of law at 
the age of eighteen ; but the impending struggle 
with Great Britain so absorbed his mind as to 
interrupt his studies before he had obtained a 
license to practice. He joined a company of 
volunteers, and by precept and example stim- 
ulated the spirit of resistance to British oppres- 
sion. 



CHAPTER 11. 

MILITARY SERVICE. 

John Marshall was not yet twenty years 
of age when he enrolled hiitiself in a volunteer 
company, which had been formed mainly by 
his efforts. His attention seems to have been 
wholly given to perfecting himself in the neces- 
sary drill and equipment for efficient military 
service in the field. The zeal and ardor of the 
young soldier, and the boldness and spirit with 
which he inspired others at this period, are 
well represented to us in a graphic account by 
a kinsman who was an eye-witness of Mar- 
shall's first appearance in the role of military 
leader in his own county. 

"It was in May, 1775. He was then a youth of 
nineteen. The muster-field was some twenty miles 
distant from the court-house, and in a section of the 
country peopled by tillers of the earth. Rumors of 
the occurrences near Boston had circulated, with the 
effect of alarm and agitation, but without the means 
of ascertaining the truth, for not a newspaper was 
printed nearer than Williamsburg, nor was one taken 



10 JOHN MARSHALL. 

within the bounds of the militia company, though 
large. The captain had called the company together, 
and was expected to attend, but did not. John Mar- 
shall had been appointed lieutenant in it. Soon after 
Lieutenant Marshall's appearance on the ground, 
those who knew him clustered about him to greet 
him, others from curiosity and to hear the news. 

He proceeded to inform the company that the cap- 
tain would not be there, and that he had been ap- 
pointed lieutenant instead of a better ; that he had 
come to meet them as fellow-soldiers, who were likely 
to be called on to defend their country and their own 
rights and liberties, invaded by the British ; that 
there had been a battle at Lexington, in Massachu- 
setts, between the British and Americans, in which 
the Americans were victorious, but that more fighting 
was expected ; that soldiers were called for, and that 
it was time to brighten up their fire-arms and learn 
to use them in the field ; and that if they would fall 
into a single line, he would show them the new man- 
ual exercise, for which purpose he had brought his 
gun, — bringing it up to his shoulder. The sergeants 
put the men in line, and their fugleman presented 
himself in front to the right. 

" His figure I have now before me. He was about 
six feet high, straight, and rather slender, of dark 
complexion, showing little if any rosy red, yet good 
health, the outline of the face nearly a circle, and 
within that eyes dark to blackness, strong and pene- 
trating, beaming with intelligence and good nature ; 
an upright forehead, rather low, was terminated in a 



MILITARY SERVICE. 11 

horizontal line by a mass of raven black hair of un- 
usual thickness and strength ; the features of the 
face were in harmony with this outline, and the 
temples fully developed. The result of this combi- 
nation was interesting and very agreeable. The body 
and limbs indicated agility rather than strength, in 
which, however, he was by no means deficient. He 
wore a purple or plain blue hunting shirt, and trou- 
sers of the same material fringed with white; and 
a round black hat, mounted with the buck's tail for a 
cockade, crowned the figure and the man. He went 
through the manual exercise, by word and motion, 
deliberately pronounced and performed in the pres- 
ence of the company, before he required the men to 
imitate him ; and then proceeded to exercise them 
with the most perfect temper. Never did man pos- 
sess a temper more happy, or, if otherwise, more sub- 
dued and better disciplined. 

"After a few lessons the company were dismissed, 
and informed that if they wished to hear more about 
the war, and would form a circle around him, he would 
tell them what he understood about it. The circle 
was formed, and he addressed the company for some- 
thing like an hour. I remember, for I was near him, 
that he spoke at the close of his speech of the min- 
ute battalion about to be raised, and said he was going 
into it and expected to be joined by many of his 
hearers. He then challenged an acquaintance to a 
game of quoits, and they closed the day with foot 
races and other athletic exercises, at which there was 
no betting. He had walked ten miles to the muster- 



12 JOHN MARSHALL. 

field, and returned the same distance on foot to his 
father's house at Oak Hill, where he arrived a little 
after sunset." ^ 

When news was received of the battle of 
Lexington, and then of the march of Patrick 
Henry upon Williamsburg, the colonial cap- 
ital of Virginia, young Marshall addressed his 
company in eloquent terms, urging them to 
prepare for every emergency, and be ready to 
march to the front at a moment's warning. 
Lord Dunmore, the Governor, had caused some 
powder to be seized by night from the maga- 
zine belonging to the colony at Williamsburg, 
and conveyed on board an armed schooner 
then lying in James River. Patrick Henry 
immediately assembled an independent com- 
pany, and with characteristic boldness marched 
upon the capital to recapture the powder by 
force. He was, how^ever, met on the way by 
a messenger from the Governor, who paid the 
full value of it in money; whereupon Henry 
and his party returned. Dunmore, having for- 
tified his " palace," issued a proclamation de- 
claring all armed forces in the colony to be 
rebels. About the same time letters from Dun- 
more to England were intercepted, which, be- 
ing filled with misrepresentations, greatly in- 
censed the people. Thus situated, his lordship 

1 Eulogy on John Marshall, by Horace Binney, pp. 22-24. 



MILITARY SERVICE. 13 

became apprehensive of personal danger, aban- 
|doned his government, and went on board a 
man-of-war then lying in James River, and 
which, having received him, dropped down to 
forfolk. About the same time Governor Mar- 
'tin, of North Carolina, took refuge on board a 
national ship in Cape Fear River, and in South 
Carolina Lord William Campbell also aban- 
doned his government and retired. 

The occurrences to the northward, the hos- 
tile attitude of parties at home, and the lia- 
bility and expectation of being called into im- 
mediate service, induced the volunteers of 
Culpeper, Orange, and Fauquier counties to 
constitute themselves a regiment of minute- 
men. This was doubtless the .organization to 
which young Marshall referred, in his address 
to the militia, as about to be formed. They 
were the first minute -men raised in Virginia, 
and numbered about three hundred and fifty. 
Lawrence Taliaferro was chosen their col- 
onel, Edward Stevens, lieutenant-colonel, and 
Thomas Marshall, major. The future Chief 
Justice himself received the appointment of 
first lieutenant in one of the companies of the 
same regiment. 

These were the citizen soldiery who, John 
Randolph said in the Senate of the United 
States, in one of his rambling speeches, '•'- were 



14 JOHN MARSHALL. 

raised in a minute, armed in a miniite^ marched 
in a minute, fought in a minute, and vanquished 
in a minute." Certainly their appearance was 
calculated to strike terror into the hearts of 
the enemy. They were dressed in green hunt- 
ing shirts, " home-spun, home- woven, and home- 
made," with the words " Liberty or Death " in 
large white letters on their bosoms. Their 
banner displayed a coiled rattlesnake, with the 
motto, " Don't tread on meT They wore in 
their hats buck-tails, and in their belts toma- 
hawks and scalping-knives. Their savage and 
warlike appearance excited the terror of the 
inhabitants as they marched through the coun- 
try to Williamsburg. Lord Dunmore told his 
troops before the action at the Great Bridge, 
which we shall presently describe, that if they 
fell into the hands of the shirt-men they would 
be scalped ; an apprehension, it is said, which 
induced several of them to prefer death to cap- 
tivity. To the honor of the shirt-rnen, however, 
it should be observed that they treated the 
British prisoners with great kindness — a kind- 
ness which was felt and gratefully acknowl- 
edged. 

Early in June Lord Dunmore, then at Nor- 
folk and still apprehensive for his personal 
aafety, fled on board of a man-of-war. With the 
British shipping off the coast of Virginia at 



MILITARY SERVICE. 15 

his command, he possessed the means of annoy- 
ing the Virginians, though without being able 
to strike any effective blow. Through, the 
autumn of 1775 both parties were kept on the 
alert, but nothing very serious occurred. At 
length, on November 7, Dunmore proclaimed 
martial law, denounced as traitors all who were 
capable of bearing arms and did not resort to 
his majesty's standard, and offered freedom to 
all slaves, belonging to rebels, who would join 
his majesty's troops. He set up his standard 
in Norfolk and Princess Anne counties, pre- 
scribed an oath of allegiance, and received a 
considerable accession to his force from the 
loyalists. 

The Virginians had collected provisions for 
their troops, which were stored at Suffolk, eight- 
een miles southwest of Norfolk. To seize these 
provisions was an object of great importance 
to Lord Dunmore, and to prevent the seizure 
was an object of not less moment to the Virginia 
troops. The provisional government perceived 
clearly the danger of allowing Lord Dunmore 
to maintain his foothold at Norfolk, and orders 
were issued immediately to Colonel Woodford to 
proceed with a detachment of his minute-men, 
including Marshall's company, to protect the 
supplies at Suffolk, and to drive the enemy 
from Norfolk. The opposing forces confronted 



16 JOHN MARSHALL. 

eacli other at the Great Bridge, as it was called, 
built over a branch of the Elizabeth River, and 
lying about twelve miles from Norfolk by the 
only practicable road to Suffolk. Dunmore, 
apprised of Woodford's movements, selected 
a strong position on the eastern side of the 
bridge, and erected a stockade-fort, which was 
supplied with many pieces of artillery. The 
approach to the bridge was commanded by his 
cannon, which were trained upon the causeway 
over which the Americans must pass. The 
morale of Dunmore 's troops, however, was not 
equal to his entrenchments. They consisted 
of two hundred regulars, a corps of Norfolk 
loyalists, and an undisciplined mob of every 
class and color. Woodford wisely threw up a 
breastwork at his end of the causeway, and 
neither party seemed disposed to begin the at- 
tack, several days having elapsed without any 
serious assault on either side. The Virginia 
troops were much superior to the enemy in 
number and character, though for the most part 
unaccustomed to warfare ; yet being young 
men of character and full of enthusiasm, they 
were quite ready for the conflict. 

Lieutenant Marshall had now his first ex- 
perience of war, and in the action which fol- 
lowed he is said to have borne an honorable 
part, contributing largely by his skill and valor, 



MILITARY SERVICE. 17 

and by the steadiness of his company's fire, to 
the success of the day. 

Colonel Woodford, perceiving that the enemy 
were reluctant to begin the attack, resorted to 
stratagem to indu.ce them to do so. An intel- 
ligent servant of Major Marshall's, whose fidel- 
ity could be relied on, instructed beforehand as 
to his story, deserted to the enemy and carried 
a report that the troops at the other end of the 
causeway did not exceed three hundred shirt- 
men. Dunmore, deceived by this report, deter- 
mined to advance to the attack, and dispatched 
his regulars, with about three hundred blacks 
and loyalists, to drive the Virginians from 
their position. The attack was led, on Decem- 
ber 9, by Captain Fordyce, a brave and accom- 
plished officer. The assailants were exposed, 
as they advanced, to the galling fire of the 
Virginia troops, who were protected by their 
breastwork. The effect was overpowering. 
Not more than twenty or thirty minutes were 
consumed in the action, and then the British, 
with a heavy loss, were totally routed. They 
abandoned their entrenchments, spiked their 
cannon, and fled precipitately to their ships at 
Norfolk. The Virginians pursued them into 
Norfolk, and here Marshall remained with his 
corps, until the town was bombarded and 
burned by the British men-of-war on January 



18 JOEN MARSHALL. 

1. Then, there being no longer occasion foi 
his services there, his company returned to 
their homes in Fauquier. 

They were not permitted, however, to remain 
long inactive, but were reorganized and became 
a part of the eleventh regiment of Virginia 
troops. They were then ordered to join the 
army of Washington in New Jersey, which was 
falling back slowly before the British troops 
commanded by Sir William Howe, who was 
soon after succeeded by Sir Henry Clinton. 
The American army, notwithstanding its suc- 
cesses at Trenton and Princeton, was in a 
wretched condition, both as to numbers and 
materiel. Washington's letters describing its 
wants and necessities, and urging relief from 
the authorities, were so touching as to draw 
tears f lom those who read them. In view of 
the actual state of affairs, he wrote, " nothing 
but a good face and false appearances have 
enabled us to deceive the enemy concerning 
our strength." When Marshall joined the army 
of Washington in the Jerseys, during this pe- 
riod of profound gloom, patient endurance of 
suffering formed the highest quality of the sol- 
dier. 

On the opening of the campaign in May, 
1777, Lieutenant Marshall was promoted to a 
captaincy, but in a position thus subordinate 



MILITARY SERVICE. 19 

he had slender opportunities to distinguish him- 
self or to attract the eye of his superiors. It 
can only be said that he omitted no opportu- 
nity to engage in the most active service that 
offered. He was personally engaged, with his 
command, in the battles of Iron Hill, Brandy- 
wine, Germantown, and Monmouth, where the 
corps to which he was attached underwent 
many hardships and performed memorable ser- 
vice. 

On December 19, Washington with his ex- 
hausted troops went into winter quarters at 
Valley Forge. The season was one of unusual 
severity. The cold was extreme, yet the sol- 
diers were often almost naked, without blan- 
kets to lie on, and often without shoes, so that 
their march might sometimes be tracked by the 
blood from their feet. Their provisions were 
always scant, and occasionally they were actu- 
ally destitute ; yet they took up their winter 
quarters within a day's march of the enemy, 
without other shelter to protect them than the 
rude huts which they hastily constructed of logs 
and mud. They submitted to all these hard- 
ships and privations without complaint, and 
were always on the alert against threatened 
attacks of the enemy, who occupied the city 
of Philadelphia. Well might Washington say 
of them that " no history now extant can fur- 



20 JOHN MARSHALL. 

nish an instance of an army suffering such 
uncommon hardships and bearing tliem with 
the same patience and fortitude." ^ 

Marshall's messmates during this memorable 
winter were Lieutenant Robert Porterfield, 
Captain Charles Porterfield, Captain Johnson, 
and Lieutenant Philip Slaughter. The last- 
named has left a record of the sufferings they 
endured from lack of food and clothes. He 
relates that his own supply of linen was reduced 
to one shirt, and that, while having this washed, 
he wrapped himself in a blanket. Most of the 
officers gave all their clothing, except what 
they were actually wearing, to their almost 
naked soldiers. Slaughter had wristbands and 
a collar made from the bosom of his shirt to 
complete his uniform for parade. Many of the 
officers were even more scantily supplied than 
he, having no under-garment whatever. They 
all lived in huts, although the snow was up to 
their knees, and not one soldier in five had a 
blanket. The country people used to bring 
them supplies which, though far from inviting, 
were bought and consumed with great eager- 
ness. The Dutch women might frequently be 
seen riding into camp seated on great bags, 
which contained one or two bushels each of 
apple pies, baked so hard that they could be 

1 Washington's Writings, vol. v. pp. 321-329. 



MILITARY SERVICE. 21 

thrown across the room without being the worse 
for it. Yet these were considered a delicacy and 
were much enjoyed. Washington every day in- 
vited the officers, in rotation, to dine with him 
at his private table, but these invitations were 
usually declined by reason of the lack of de- 
cent clothing to appear in. Slaughter, being in 
a state of comparative affluence, often went in 
place of the others, in order, as he said, that his 
regiment might be represented. 
Of Marshall, Slaughter says : — 

" He was the best - tempered man I ever knew. 
During his sufferings at Valley Forge nothing dis- 
couraged, nothing disturbed him. If |lie had only 
bread to eat, it was just as well; if only meat, it 
made no difference. If any of the officers mur- 
mured at their deprivations he would shame them by 
good-natured raillery, or encourage them by his own 
exuberance of spirits. He was an excellent compan- 
ion, and idolized by the soldiers and his brother offi- 
cers, whose gloomy hours were enlivened by his in- 
exhaustible fund of anecdote." 

Another account from a contemporary says 
that at this time his judicial capacity and fair- 
ness were held in such estimation by many of 
his brother officers that, in many disputes of a 
certain description, he was constantly chosen 
arbiter ; and that officers, irritated by difference 
and animated by debate, often submitted the 



22 JOHN MARSHALL. 

contested points to his judgment, which, given 
in writing, and accompanied, as it commonly 
was, by sound reasons in support of his de- 
cision, obtained general acquiescence. At this 
period, besides his field service, he acted as 
deputy judge advocate of the army, and thus 
came into personal relations with Washington, 
securing a confidence and regard of life-long 
duration. 

On the evacuation of Philadelphia by Sir 
Henry Clinton, in June, 1778, the American 
force was immediately put in motion with a 
view to harass and annoy the retreating army. 
Marshall was in the battle of Monmouth, which 
ensued, and he remained with his command 
throughout the campaign as well as during the 
succeeding winter. About this time he was so 
fortunate as to be connected with two of the 
most brilliant actions that occurred during the 
campaign of 1779. He was with Wayne at 
the assault on Stony Point, on the night of 
June 16 ; and subsequently with the detach- 
ment to cover the retreat of Major Lee, after 
his surprise of the enemy's post at Powles's 
Hook, on July 19, an enterprise which re- 
flected lustre on the American arms. 

Toward the close of that year, a part of the 
Virginia line was detached and sent to South 
Carolina, to cooperate in the defense of that 



MILITARY SERVICE. 23 

State ; but it so happened that Marshall was at- 
tached to the other part, which remained with 
Washington, but whose term of enlistment soon 
after expired. He was thus left without any 
command, and was ordered with other supernu- 
meraries to return to Virginia and take charge 
of such men as the State might raise for them, 
'( it being in the contemplation of the General 
Assembly to raise a new corps to supply the 
\ place of those whose term of service had thus 
come to an end. Accordingly he repaired to 
, Williamsburg, where the legislature was in ses- 
sion. While the subject was under discussion 
I in the General Assembly and awaiting its tardy 
I action, he took advantage of the opportunity 
I to attend a course of law lectures delivered by 
I the learned and celebrated Chancellor Wythe, 
of William and Mary College ; also the lec- 
\ tures of Bishop Madison, the president of the 
college, on natural philosophy. Thus he was 
enabled in the ensuing summer to obtain a li- 
cense to practice law, but his sense of duty to 
his country soon drew him back to the army. 
The project for raising additional forces in Yir- 
1 ginia seems to have failed, and tired of inaction, 
I he set out alone and on foot to make the long 
and wearisome journey to headquarters. On 
his arrival in Philadelphia, it is said that his 
appearance and outfit were so shabby that the 



24 JOHN MARSHALL. 

landlord of the hotel to which he came refused 
him admittance. He thus resumed his connec- 
tion with the army; but soon afterward, hear- 
ing of the invasion of Virginia by the British 
troops under General Leslie, in 1780, he again 
returned thither, and joined the small force 
under Baron Steuben, who had been left by 
General Greene (on his way to assume the 
command of the southern army) for the de- 
fense of the State. General Leslie finding, 
however, that he could not effect a junction 
with Cornwallis, finally sailed for Charleston. 
When, subsequently, the State was again in- 
vaded by Arnold, Captain Marshall joined the 
forces collected to oppose him, and continued 
in service to the latter part of January, 1781, 
when Arnold had retired discomfited to Ports- 
mouth. There being still a redundancy of offi- 
cers of the Virginia line, and no additional 
troops being raised for them to command, he 
was unwilling to remain longer a supernumer- 
ary and resigned his commission. 



» 



CHAPTER III. 

AT THE BAR. 



In 1780-81 Marshall was admitted to the 
bar and entered on the practice of law in Fau- 
quier County. With his fine abilities, his high 
character, his family antecedents, and local sur- 
roundmgs in his native county, it is not sur- 
prising that his success was assured at once. 
He was spared the customary ordeal of climb- 
ing upward in his profession by the toilsome 
and rugged road of hard and patient labor. 
Such was the popular appreciation of his worth 
that, almost without effort, he secured at once 
a large clientage, which brought him early 
prominence and fame at the bar, and a con- 
sequently remunerative practice. In fact his 
clear head and patient industry gave him pe- 
culiar qualifications for laboring in the chaos 
into which the jurispvudence of the State had 
been plunged by the war. But he was not 
permitted to pursue without interruption his 
professional fortunes in provincial courts. The 
difficulties of the times, especially the putting 



26 JOHN MARSHALL. 

into safe and harmonious operation the machin- 
ery of the new government in the altered con- 
dition of affairs, urgently demanded in the pub- 
lic counsels the resources of the wisest heads 
and the efforts of the best men in the land. He 
was immediately chosen one of the delegates 
from Fauquier County to the legislature. It 
was certainly no small tribute to the character 
and ability of this young man just come to the 
bar, and not yet twenty-five years of age, that 
he should have been selected by the public suf- 
frage to fill a position so conspicuous and re- 
sponsible. Like Washington, he never sought 
official station nor public honors, but often 
shunned them, as we shall see. Nor was he 
ever a self -announced candidate for any office. 
All such positions held by him, military, polit- 
ical, and judicial, were given him by the unso- 
licited confidence of those whose duty it was 
to bestow them. In his case alw^ays "the place 
sought the man and not the man the place." It 
is safe to say that, with the exception always 
of Washington, few of his countrymen, espe- 
cially in succeeding times, can present a simi- 
lar record. 

It may be supposed that, owing to his long 
service in the army and the frequent interrup- 
tion of his law studies on this account, his legal 
lore could not have been, at this period, either 



AT THE BAR. 27 

profound or extensive. But what was said of 
the Virginians by an English historian, who 
lived among them more than one hundred and 
fifty years ago, was true especially of John 
Marshall, namely, "Being naturally of good 
parts, they neither require nor admire as much 
learning as they do in Britain." ^ 

Marshall rose rapidly at the bar. Once 
fairly launched in the career of practice, his 
extraordinary abilities did not fail to make a 
strong impression on those who witnessed their 
display. This early success he attributed with 
native modesty to the friendship of his old 
comrades in arms. Treated with base ingrati- 
tude by the country, the war-worn and poverty- 
stricken band of the soldiers of the Revolution 
stood all the more closely together. " They 
knew," he would say, " that I felt their wrongs 
and sympathized in their sufferings and had 
partaken of their labors ; and that I vindicated 
their claims upon their country with a warm 
and constant earnestness." These veterans all 
spoke of him in terms of the liveliest praise. 
Especially the Revolutionary officers of the 
Virginia line, "now few and faint but fearless 
still," seemed to idolize him, as an old friend 

1 The Present State of Virginia, by Hugh Jones, A. M., Chap- 
Iain to the Honorable Assembly and lately Minister of James- 
town in Virginia. 



28 JuHN MARSHALL. 

and companion who enjoyed thoir unqualified 
confidence. They knew his mental qualities 
and his integrity, and they loved him for the 
goodness of his heart. 

The close of the Revolutionary War was in 
many respects a fortunate period at which to 
begin active practice at the bar. So far as the 
mere amount of business was concerned, a great 
accession of litigation was the necessary result 
of the civil and social disruptions wrought by 
that struggle. The mutations which property 
had undergone amid the conflicts of a long 
war, outstanding debts and contracts, and the 
adjustment of old controversies, became fruit- 
ful sources of litigation, and cumbered the 
dockets of the courts. In the course of a 
speech in the Virginia Convention of 1788, 
defending and maintaining the necessity of a 
federal as well as a state judiciary, Mr. Mar- 
shall demanded : " Does not every gentleman 
here know that the causes in our courts are 
more numerous than they can decide accord- 
ing to their present construction? Look at the 
dockets. You will find them crowded with 
suits, which the life of man will not see de- 
termined. If some of these suits be carried to 
other courts, will it be wrong ? They will still 
have business enough." 

Further than this the character of the ques- 



AT THE BAR. 29 

fcions arising, and the condition of the Ia\Y itself, 
tended to call forth the highest enei-gies of the 
profession. Everything seemed new, unsettled, 
and to be made over afresh. American juris- 
prudence was as yet unborn. Questions of 
novel character were constantly arising, — ques- 
tions to be settled not by authority, but by the 
light of reason and innate right, and with due 
reference to the changed condition of political 
and social affairs. Here the advocate was 
scarcely either aided or impeded by cases and 
precedents. In the investigation and argument 
of such causes he was obliged to rely chiefly on 
the unassisted powers of his own mind, and to 
reason from general principles and in the spirit 
of justice ; he could find scant opportunity to 
adopt as guides the thoughts of others in a dif- 
ferent field of investigation. Here the peculiar 
abilities of Marshall found an appropriate the- 
atre for their employment. It was the legal 
habit of thought, and the power of construction 
in sympathy with the spirit of English systems 
of law, that were needed. This peculiar capac- 
ity belonged to Marshall in a rare degree ; by 
the aid of it he afterward shaped the broad 
outlines of American constitutional law, doing 
a work more of creation than of learning, and 
therefore certainly of the highest order. This 
form of professional work was that which came 



30 JOHN MARSHALL. 

natural to him. It so happened that the cir- 
cumstances under which he came to the bar 
fostered and exercised the tendency. In a 
different period of judicial development, with 
different requirements, he would have occupied 
a less monumental position ; but the need of 
the times and the qualifications of the man 
were in happy accord. 

The system of jurisprudence of which the 
rules and principles had been laid down in the 
Virginia Constitution of 1776, with which Mar- 
shall was now becoming familiar, had doubtless 
a strong tendency, in the practice under it, to 
sharpen the intellect and beget in the bar hab- 
its of nice discrimination and close analysis in 
legal reasoning. The jurisdiction of the courts 
was wisely distributed among separate tribu- 
nals with a view to simplicity, certainty, and 
economy. Justices of the peace, having orig- 
inal but limited civil and criminal jurisdiction, 
were appointed by the Governor on the nomi- 
nation of the county courts. These magis- 
trates formed, when assembled in monthly and 
quarterly sessions at their court - liouses, the 
county courts, four members making a quorum 
in all civil, and five in all criminal, causes. 
These being selected from the gentry of the 
county were, almost without exception, men of 
property, of superior intelligence, and high 



AT THE BAR. 31 

character. They, received no compensation for 
tlieir services, beyond the chance of succession 
by seniority to the office of high sheriff of the 
county, a lucrative position of dignity and im- 
portance, which was fixed at the term of two 
years. The circuit and the superior courts of 
law were of wider jurisdiction, and had fixed 
pay for the judges. They exercised original 
jurisdiction in all civil cases, and appellate ju- 
risdiction from the county courts on points of 
law in all criminal cases, except in the trial of 
slaves, in which the county courts were courts 
of oyer and terminer ; all five of the members, 
however, had to concur in their judgments, 
otherwise the prisoner was entitled to a dis- 
charge. The decisions of the circuit courts 
were subject to appeal on points of law in 
criminal causes to the general court, an appel- 
late tribunal of the last resort, composed of a 
majority of the circuit judges, who met an- 
nually at the seat of government to try such 
causes. 

The chancery courts, whose jurisdiction was 
confined exclusively to equity, were held in 
certain districts of the State, and from their 
decrees appeals lay to the supreme court of ap- 
peals at Richmond, as the court of last resort. 

This judicial system, thus briefly outlined, 
subject to such modifications as the legislature 



32 JOHN MARSHALL. 

had, from time to time, enacted, prevailed in 
Virginia from the close of the Revolutionary 
War to the year 1829-30, — a period of nearly 
fifty years, when a convention was called and 
a new constitution framed in the interests of 
progress and reform. In the judgment of 
many wise and considerate men in Virginia 
these departures . in the several new constitu- 
tions, since enacted, from the wisely adjusted 
and nicely balanced system of our Revolution- 
ary fathers in 1776, have not proved happy, 
nor promoted the public good. 

This court system naturally tended to con- 
centre the most important cases and the chief 
business of litigation in the new metropolis at 
Richmond, and thither accordingly the ablest 
provincial lawyers necessaril}^ gravitated. For 
in consequence of the extent of territory to be 
traversed, and of the slow and expensive mode 
of travel at that day to reach the capital, the 
country lawyers seldom followed their causes 
to the appellate courts at Richmond. The 
result was that the more successful country 
practitioners soon saw the wisdom of enlarging 
their sphere of practice by transferring their 
offices to the metropolis. Thus it was that 
Marshall, after a practice of only two years at 
the bar of Fauquier and in the adjacent courts, 
having already established himself in a good 



AT THE BAR. 33 

business and acquired a reputation which was 
further enhanced by his able service in the 
legislature, removed his office to Richmond, 
where his increasing business and popularity 
placed him almost at once at the head of his 
profession. 

It was during his service in the legislature 
that he was elected by that body a member of 
the state or executive council ; and he was 
made also a general in the new organization 
of the state militia under the peace establish- 
ment. 

At the metropolitan bar of his native State 
Mr. Marshall was brought into active com- 
petition with rivals of distinguished fame, — a 
bar which boasted at that time the names of 
Patrick Henry, John Wickham, James Innes, 
Alexander Campbell, Benjamin Botts, and Ed- 
mund Randolph. He took rank at once with 
these as equals, and soon became known and 
recognized as chief among them. Yet there was 
nothing in his appearance, manners, or habits 
to attract attention or to conciliate the inter- 
ests of the public. On the contrary, in the 
eyes of ordinary acquaintances, he seemed des- 
titute of those attributes of person and manner 
which render men attractive and insure profes- 
sional employment and preferment. We have 
some accounts, written at that early day, of his 



34 JOHN AfARSHALL. 

personal appearance and rustic manners, whicli 
are characteristic. 

" He was one morning strolling through the streets 
of Richmond, attired in a plain linen romid-about 
and shorts, with his hat under his arm, from which he 
was eating cherries, when he stopped in the porch of 
the Eagle Hotel, indulged in some little pleasantry 
with the landlord, and then passed on. Mr. P., a 
gentleman from the country then present, who had a 
case coming on before the court of appeals, was 
referred by the landlord to Marshall, as the best ad- 
vocate for him to employ ; but the careless, languid 
air of the young lawyer had so prejudiced Mr. P. that 
he refused to engage him. On entering court, Mr. 
P. was a second time referred by the clerk of the 
court to Mr. Marshall, and a second time he declined. 
At this moment entered Mr. V., a venerable-looking 
legal gentleman in a powdered wig and black coat, 
whose dignified appearance made such an impression 
on Mr. P. that he at once engaged him. In the first 
case which came on, Marshall and Mr. V. each ad- 
dressed the court. The vast inferiority of his 
advocate was so apparent that, at the close of the 
case, Mr. P. introduced himself to young Marshall, 
frankly stated the prejudice which had caused him, in 
opposition to advice, to employ Mr. V., that he ex- 
tremely regretted his error, but knew not how to 
remedy it. He had come into the city with one hun* 
dred dollars as his lawyer's fee, and had but five left, 
vvhich, if Marshall chose, he would cheerfully give 



AT THE BAR. 35 

him for assisting in the case. Marshall, pleased with 
the incident, accepted the offer — not however with- 
out passing a sly joke at the omnipotence of a pow- 
dered wig and black coat." ^ 

The qualities of mind, more important than 
these matters of external appearance, which 
earned for Mr. Marshall his great reputation 
as a lawyer and an orator at the bar, are thus 
graphically delineated by the graceful pen of 
William Wirt, one of the forensic contempora- 
ries of his later career. 

" This extraordinary man," says Mr. Wirt, " with- 
out the aid of fancy, without the advantages of 
person, voice, attitude, gesture, or any of the orna- 
ments of an orator, deserves to be considered as one 
of the most eloquent men in the world ; if eloquence 
may be said to consist in the power of seizing the 
attention with irresistible force, and never permit- 
ting it to elude the grasp until the hearer has 
received the conviction which the speaker intends. 
His voice is dry and hard ; his attitude, in his most 
effective orations, was often extremely awkward ; 
while all his gesture proceeded from his right arm 
and consisted merely in a perpendicular swing of it 
from about the elevation of his head to the bar, be- 
hind which he was accustomed to stand. As to fancy, 
if she hold a seat in his mind at all, his gigantic ge- 
nius tramples with disdain on all her flower-decked 
plats and blooming parterres. How then, you will 
1 Howe's Historical Collections, p. 266. 



36 JOHN MARSHALL. 

ask, how is it possible, that such a man can hold the 
attention of his audience enchained through even a 
speech of ordinary length ? I will tell you. He 
possesses one original and almost supernatural fac- 
ulty ; the faculty of developing a subject by a single 
glance of his mind and detecting at once the very 
point on which every controversy depends. No mat- 
ter what the question ; though ten times more knotty 
than ' the gnarled oak,' the lightning of heaven is not 
more rapid or more resistless than his astonishing 
penetration. Nor does the exercise of it seem to 
cost him an effort. On the contrary, it is as easy as 
vision. I am persuaded that his eyes do not fly over 
a landscape and take in its various objects with more 
promptitude and facility than liis mind embraces and 
analyzes the most complex subject. 

" Possessing, while at the bar, this intellectual 
elevation, which enabled him to look down and com- 
prehend the whole ground at once, he determined 
immediately and without difficulty on which side the 
question might be most advantageously approached 
and assailed. In a bad cause his art consisted in 
laying his premises so remotely from the point di- 
rectly in debate, or else in terms so general and so 
specious, that the hearer, seeing no consequence which 
could be drawn from them, was just as willing to 
admit them as not ; but, his premises once admitted, 
the demonstration, however distant, followed as cer- 
tainly, as cogently, as inevitably, as any demonstra- 
tion in Euclid. All his eloquence consists in the 
apparently deep self-conviction and emphatic earnest* 



AT THE BAR. 37 

ness of his manner ; the correspondent simplicity and 
energy of his style ; the close and logical connection 
of his thoughts ; and the easy gradations by which 
he opens his lights on the attentive minds of his 
hearers. The audience are never permitted to pause 
for a moment. There is no stopping to weave gar- 
lands of flowers, to hang in festoons around a favor- 
ite argument. On the contrary, every sentence is 
progressive ; every idea sheds new light on the sub- 
ject ; the listener is kept perpetually in that sweetly 
pleasurable vibration, with which the mind of man 
always receives new truths ; the dawn advances with 
easy but unremitting pace ; the subject opens grad- 
ually on the view ; until, rising in high relief, in all 
its native colors and proportions, the argument is 
consummated by the conviction of the delighted 
hearer." ^ 

It is impracticable, within the limits of this 
work, to cite the particular causes in which 
Marshall appeared at the bar at this period of 
his career ; but there was one cause celebre^ the 
argument of which won for him such extensive 
renown that its fame spread throughout the 
Union. It was the case of Ware v. Hylton, 
familiarly known to the profession as involving 
the British debt question, — a question which, 
arising in a multitude of cases in all the States 
at this time, was causing extremely bitter and 
excited controversy. It was tried in the Cir* 

1 The British Spy, pp. 178-181. 



38 JOHN MARSHALL. 

cuit Court of the United States at Richmond, 
before Chief Justice Jay, Judge Iredell, of the 
United States Circuit Court, and Judge Griffin, 
of the United States District Court. Patrick 
Henry, John Marshall, Alexander Campbell, 
and James Innes, Attorney General of Vir- 
ginia, appeared for the American debtors ; and 
Andrew Roland, John Wickham, Stark, and 
Baker were of counsel for the English cred- 
itors. Attracted by the eminence of the coun- 
sel, as well as the large interests affected by the 
decision of the court, an intelligent and ex- 
pectant audience were brought together in the 
court -room. A distinguished English lady, 
the Countess of Huntingdon, on her travels in 
this country, had tarried in Richmond and was 
present during the trial. After hearing the 
several speakers, she remarked that " if any 
one of them had spoken in Westminster Hall, 
he would have been honored with a peerage." 
In this trial Patrick Henry made one of the 
greatest efforts of his life. Realizing the abil- 
ity of those with whom he had to cope he 
made unusual preparation, and is said to have 
shut himself up in his office for three days 
without seeing even a member of his family, 
his food being handed in to him by a servant. 
His argument, wliich lasted three days, so in- 
jured his voice that it never fully recovered its 
strength. 



AT THE BAR. 89 

It seems well worth while to quote at some 
length from the report of Marshall's argument, 
both because of the historical importance of 
the question at issue and because it will furnish 
a striking, though inadequate, indication of his 
habits of thought and manner of reasoning. 
The point was, whether the act of Virginia, 
passed during the war, providing that Amer- 
icans in debt to British creditors might be 
absolved from their indebtedness by paying the 
amount into the state treasury, was a bar to 
the recovery of debts so paid, notwithstanding 
that the treaty of 1783 provided that creditors 
on either side should meet with no lawful im- 
pediment to the recovery of the full value, in 
sterling money, of all subsisting bond fide debts 
theretofore contracted. 

" The case resolves itself," said Mr. Marshall, " into 
two general propositions. First, that the act of As- 
sembly of Virginia is a bar to the recovery of the 
debt, independent of the treaty. Secondly, that the 
treaty does not remove the bar. 

" That the act of Assembly of Virginia is a bar 
to the recovery of the debt introduces two subjects 
for consideration : — 

" First, whether the legislature had power to ex- 
tinguish the debt? Secondly, whether the legisla- 
ture had exercised that power ? 

" First. It has been conceded that independent 
nations have in general the right of confiscation, and 



40 JOHN MARSHALL. 

that Virginia, at the time of passing her law, was 
an independent nation. But it is contended that, 
from the peculiar circumstances of the war, the citi- 
zens of each of the contending nations having been 
members of the same government, the general right 
of confiscation did not apply, and ought not to be ex- 
ercised. It is not, however, necessary for the defend- 
ant in error to show a parallel case in history, since 
it is incumbent on those who wish to impair the sov- 
ereignty of Virginia to establish on principle or prec- 
edent the justice of their exception. That State 
being engaged in a war necessarily possessed the 
powers of war ; and confiscation is one of those pow- 
ers, weakening the party against whom it is employed 
and strengthening the party that employs it. War, 
indeed, is a state of force ; and no tribunal can decide 
between the belligerent powers. But did not Virginia 
hazard as much by the war as if she had never been 
a member of the British empire? Did she not haz- 
ard more, from the very circumstance of its being a 
civil war ? It will be allowed that nations have 
equal powers ; and that America, in her own tribu- 
nals at least, must, from the 4th of July, 1776, be 
considered as independent a nation as Great Britain. 
Then what would have been the situation of Ameri- 
can property had Great Britain been triumphant in 
the conflict? Sequestration, confiscation, and pro- 
scription would have followed in the train of that 
event; and why should the confiscation of British 
property be deemed less just in the event of the 
American triumph ? The rights of war clearly exist 



AT THE BAR. 41 

between members of the same empire engaged in a 
civil war. 

" But, suppose a suit had been brought during the 
war by a British subject against an American citi- 
zen, it could not have been supported ; and if there 
was a power to suspend a recovery, there must have 
been a power to extinguish the debt. They are, in- 
deed, portions of the same power, emanating from 
the same source. The legislative authority of any 
country can only be restrained by its own municipal 
(Ljonstitution. This is a principle that springs from 
the very nature of society; and the judicial authority 
can have no right to question the validity of a law, 
unless such a jurisdiction is expressly given by the 
constitution. It is not necessary to inquire how the 
judicial authority should act if the legislature were 
evidently to violate any of the laws of God ; but 
property is the creature of civil society and subject, 
in all respects, to the disposition and control of civil 
institutions. . . . 

" But it is now to be considered whether, if the 
legislature of Virginia had the power of confiscation, 
they have exercised it? The third section of the 
act of Assembly discharges the debtor ; and on the 
plain import of the term it may be asked, if he is 
discharged how can he remain charged? The ex- 
pression is, 'he shall be discharged from the debt,' 
and yet it is contended he shall remain liable for the 
debt. Suppose the law had said that the debtor 
should be discharged from the commonwealth, but 
not from his creditor, would not the legislature have 



42 JOHN MARSHALL. 

betrayed the extremest folly in such a proposition ? 
and what man in his senses would have paid a far- 
thing into the treasury under such a law ? Yet, in 
violation of the expressions of the act, this is the 
construction which is now attempted. 

" It is likewise contended that the act of Assembly 
does not amount to a confiscation of the debts paid 
into the treasury ; and that the legislature had no 
power, as between creditors and debtors, to make a 
substitution or commutation in the mode of payment. 
But, what is a confiscation ? The substance and not 
the form is to be regarded. The State had a right 
either to make the confiscation absolute or to modify 
it, as she pleased. If she had ordered the debtor to 
pay the money into the treasury, to be applied to pub- 
lic uses, would it not have been, in the eye of reason, 
a perfect confiscation ? She had thought proper, how- 
ever, only to authorize the payment, to exonerate the 
debtor from his creditor, and to retain the money in 
the treasury subject to her own discretion as to its 
future appropriation. As far as the arrangement has 
been made, it is confiscatory in its nature, and must 
be binding on the parties, though, in the exercise of 
her discretion, the State might choose to restore the 
whole or any part of the money to the original cred- 
itor. Nor is it sufficient to say that the payment was 
voluntary in order to defeat the confiscation. A law 
is the expression of the public will, which, when ex- 
pressed, is not the less obligatory because it imposes 
no penalty. . . . 

" Having thus, then, established that at the time oi 



AT THE BAR. 43 

entering into the treaty of 1783, the defendant owed 
nothing to the plaintiff, it is next to be inquired 
whether that treaty revived the debt in favor of the 
plaintiff, and removed the bar to a recovery, which 
the law of Virginia had interposed ? The words of 
the fourth article of the treaty are, that creditors on 
either side shall meet with no lawful impediment to 
the recovery of the full value in sterling money of all 
bond fide debts heretofore contracted. Now, it may 
be asked, who are creditors ? There cannot be a 
creditor where there is not a debt ; and British debts 
were extinguished by the act of confiscation. The 
articles, therefore, must be construed with reference 
to those creditors who had bond fide debts subsisting, 
in legal force, at the time of making the treaty ; and 
the word recovery can have no effect to create a debt, 
where none previously existed. Without discussing 
the power of Congress to take away a vested right 
by treaty, the fair and rational construction of the in- 
strument itself is sufficient for the defendant's cause. 
The words ought surely to be very plain that shall 
work so evident a hardship as to compel a man to pay 
a debt which he had before extinguished. The treaty 
itself does not point out any particular description of 
persons who were to be deemed debtors, and it must 
be expounded in relation to the existing state of 
things. 

" It is not true that the fourth article can have no 
meaning, unless it applies to cases like the present. 
For instance, there was a law of Virginia which pro- 
hibited the recovery of British debts that had not 



14 JOHN MARSHALL. 

been paid into the treasury. These were bond 
f.de subsisting debts ; and the prohibition was a legal 
impediment to the recovery, which the treaty was 
intended to remove. So likewise in several other 
States laws have been passed authorizing a discharge 
of British debts in paper money, or by a tender of 
property at a valuation, and the treaty was calculated 
to guard against such impediments to the recovery of 
the sterling value of those debts. It appears, there- 
fore, that, at the time of making the treaty, the 
state of things was such that Virginia had exercised 
her sovereign right of confiscation, and had actually 
received the money from the debtors to the British. 
If debts thus paid were within the scope of the fourth 
article, those who framed the article knew of the pay- 
ment; and upon every principle of equity and law it 
ought to be presumed that the recovery, which they 
contemplated, was intended against the receiving 
State, not against the paying debtor. Virginia pos- 
sessing the right of compelling a payment for her 
own use, the payment to her, upon her requisition, 
ought to be considered as a payment to the attorney 
or agent of the British creditor. Nor is such a sub- 
stitution a novelty in legal proceedings ; a foreign at- 
tachment is founded upon the same principle. . . . 

" This act of Virginia must have been known to 
the American and British commissioners ; and there- 
fore cannot be repealed without plain and explicit 
expressions directed to that object. Besides, the 
public faith ought to be preserved. The public faith 
was plighted by the act of Virginia ; and, as a re' 



AT TEE BAR. 45 

rival of the debt in question would be a shameful 
violation of the faith of the State to her own citizens, 
the treaty should receive any possible interpretation 
to avoid so dishonorable and so pernicious a conse- 
quence. It is evident that the power of the govern- 
ment to take away a vested right was questionable 
in the minds of the American commissioners, since 
they would not exercise that power in restoring con- 
fiscated real estate ; and confiscated debts or other 
personal estate must come within the same rule." 

William Wirt, in contrasting the powers of 
John Marshall and Alexander Campbell, writes 
to a friend in the following terms : — 

" From what I have heard of Campbell, I believe 
that, for mere eloquence, his equal has never been 
seen in the United States. He and the future Chief 
Justice went to Philadelphia to argue a certain cause 
somewhere about 1795 or 1796. They were opposed 
by Hamilton, Lewis, and others. Campbell played 
off his Apollonian airs ; but they were lost. Mar- 
shall spoke, as he always does, to the judgment 
merely, and for the simple purpose of convincing. 
Marshall was justly pronounced one of the greatest 
men of the country. He was followed by crowds, 
looked upon and courted with every evidence of ad- 
miration and respect for the great powers of his 
mind. Campbell was neglected and slighted, and 
came home in disgust. Marshall's maxim seems al- 
ways to have been, 'Aim exclusively at strength ; ' 
and from his eminent success I say, if I had my life 



46 JOHN MARSHALL, 

to go over again, I would practice on his maxim, 
with the most rigorous severity, until the character 
of my mind was established." ^ 

Any abstract of an argument by a mind so 
analytical as Marshall's would present an in- 
adequate picture of its power. The most that 
an historian can hope to effect by any state- 
ment of it is to show his habit of resolving 
every proposition he intended to maintain or to 
attack into its original elements, and by that 
rigid analysis to develop its strength or to dem- 
onstrate its weakness. This is certainly the 
simplest, the most direct, and the most success- 
ful style of reasoning at the bar. His argument 
in Ware v, Hilton happily illustrates this mode, 
which the French language expresses better 
than our own, by the word approfondir^ — " to 
go to the bottom of.''^ He was thus accustomed 
to reduce his arguments to one strong point, 
which he made the pivot of the controversy, 
and around which he made all inferior consid- 
erations to revolve. Although the final decis- 
ion of this case was adverse to him, the argu- 
ment secured him great reputation and widely 
enlarged the sphere of his practice, which, for 
several years before his partial withdrawal from 
the bar in consequence of other and higher em- 
ployments, exceeded that of any other lawyer 
in Virginia. 

1 Kennedy's Wirt, ii. 83. 



AT THE BAR. 47 

So great and widespread was the fame of 
the bar of Richmond at this time, that it at- 
tracted the presence and attention of travelers 
and foreigners. In a book of travels in the 
United States, by one of these distinguished 
visitors, the Dn.ke de Liancourt, a French peer, 
we get the impression made upon an intelligent 
foreign observer of men and manners in Amer- 
ica at that period. Speaking of Edmund Ran- 
dolph, the ex-secretary of state, the Duke says : 
" He has a great practice, and stands in that re- 
spect nearly on a par with Mr. J. Marshall, the 
most esteemed and celebrated counselor of this 
town. The profession of a lawyer is here, as in 
every other part of America, one of the most 
profitable ; but though the employment is here 
more constant than in Carolina, the practition- 
er's emoluments are very far from being equally 
considerable. Mr. Marshall does not, from his 
practice, derive above four or five thousand 
dollars per annum, and not even that sum every 
year." After a more familiar acquaintance 
with the public men at the capital of Virginia, 
the same writer says : — 

" Mr. J. Marshall, conspicuously eminent as a pro- 
fessor of the law, is beyond all doubt one of those 
who rank highest in the public opinion at Richmond. 
He is what is called a Federalist, and perhaps, at 
times, somewhat warm in support of his opinions, but 
never exceeding the bounds of propriety, which a 



48 JOHN MARSHALL. 

man of his goodness and prudence and knowledge ii 
incapable of transgressing. He may be considered 
as a distinguished character in the United States. 
His political enemies allow him to possess great 
talents, but accuse him of ambition. I know not 
whether the charge be well or ill grounded, or 
whether that ambition might ever be able to impel 
him to a dereliction of his principles, — conduct of 
which I am inclined to disbelieve the possibility on his 
part. He has already refused several employments 
under the general government, preferring the income 
derived from his professional labors (which is more 
than sufficient for his moderate system of economy) 
together with a life of tranquil ease in the midst of 
his family and his friends. Even by his friends he 
is taxed with some little propensity to indolence, but 
even if this reproach were well founded, he neverthe- 
less displays great superiority in his profession when 
he applies his mind to business." 

On January 3, 1783, Marshall was married 
to Mary Willis Ambler, a claugliter of Jacque- 
line Ambler, then treasurer of Virginia. On 
the mother's side she was a descendant of the 
La Roche Jacquelines of France. He had been 
attached to this lady before he left the army, 
but they were not married until about the time 
of his taking up his residence in Richmond. 
It proved to be a union which constituted, as 
he declares, the chief happiness of his life, and 
which endured in uninterrupted affection and 
conj&dence for a period of more than fifty yeara 



CHAPTER IV. 

IN THE STATE LEGISLATX/EE. 

1782-1788. 

At the session of 1782 Mr. Marshall took 
his seat in the General Assembly of Virginia as 
a member from the county of Fauquier. He 
was then twenty-seven years of age, already 
in the front rank of his profession as a lawyer, 
but as yet without any experience in political 
affairs. His stirring, active life in the army, 
and the constantly increasing demands on his 
time and energies in the professional career 
opened to him in the courts, had left him slen- 
der opportunity to study the science of govern- 
ment, or even to pursue with constancy a course 
of general reading. But his native sagacity, 
aided by his observation and experience in life, 
especially while serving in the army under 
Washington, where he had observed the de- 
fects of the system established uncJer the Arti- 
cles of Confederation, and the mischiefs flowing 
therefrom, had led him to see and recognize 
the absolute necessity of a central authority in 



50 JOHN MARSHALL. 

the government, which should be sufficiently 
strong to assert and sustain itself without 
awaiting the tardy and uncertain cooperation 
of an unwieldy constituency, like the States 
acting separately. With these convictions he 
naturally attached himself to the party which, 
while ardently republican, yet advocated a gen- 
eral government strong enough to insure the 
public safety, and to execute the powers with 
which it might be clothed, proj)rio vigors, inde- 
pendently of control by the several States. His 
attachment to such a union as this was warm 
and sincere, and was fostered by all the cir- 
cumstances of his early career in life. 

The influence of these reflections served in 
his sober judgment, as he wrote in after years, 
to chasten and subdue "certain enthusiastic 
notions with which he was tinctured^' in the 
early Revolutionary era. In a letter to a 
friend, at that subsequent period, he said: — 

" The questions which were perpetually recurring 
in the state legislatures, and which brought annually 
into doubt principles which I thought most sacred ; 
which proved that everything was afloat and that we 
had no safe anchorage ground, gave a high value in 
my estimation to that article in the constitution which 
imposes restrictions on the States. I was conse- 
quently a determined advocate for its adoption, and 
became a candidate for the state convention. 



IN THE STATE LEGISLATURE. 51 

"When I recollect the wild and enthusiastic no- 
tions with which my political opinions of that day 
were tinctured, I am disposed to ascribe my devotion 
to the Union, and to a government competent to its 
preservation, at least as much to casual circumstances 
as to judgment. I had grown up at a time when the 
love of the Union, and the resistance to the claims of 
Great Britain, were the inseparable inmates of the 
same bosom. When patriotism and a strong fellow- 
feeling with our fellow-citizens of Boston were iden- 
tical, when the maxim, ' United we stand, divided we 
fall,' was the maxim of every orthodox American. 
And I had imbibed these sentiments so thoroughly 
that they constituted a part of my being. I carried 
them with me into the army, where I found myself 
associated with brave men from different States, who 
were risking life and everything valuable in a com- 
mon cause, believed by all to be most precious, and 
where I was in the habit of considering America as 
my country and Congress as my government." 

Adverting to the hardships the army had en- 
dured, he adds : — 

" My immediate entrance into the state legislature 
opened to my view the causes which had been chiefly 
instrumental in augmenting those sufferings ; and the 
general tendency of state politics convinced me that 
no safe and permanent remedy could be found but in 
a more efficient and better organized general govern- 
ment." 1 

1 Story's Discourse on the Life, etc., of Marshall. 



52 JOHN MARSHALL. 

The legislature convened not long after the 
surrender of Cornwallis at Yorktown, on the 
nmeteenth day of October, 1781. This was 
practically the close of the war in Virginia. It 
was not difficult to see that very grave ques- 
tions of state and national policy would en- 
gage the attention of the General Assembly at 
such a juncture, and that much of good or evil 
might flow from its deliberations and from its 
decisions upon the many social and political 
problems which so strongly agitated the public 
mind. 

Prominent and very urgent among these prob- 
lems was the necessity for making immediate 
provision for the payment of our officers and 
soldiers, now about to be disbanded, who were 
destitute, in most cases, of the means of sub- 
sistence, while the State was largely in their 
debt. To devise a prompt and efficient remedy 
for this pressing need, Mr. Marshall exerted 
himself to the utmost, but the difficulties grow- 
ing out of the peculiar condition of the country 
seemed at the time to be almost insurmount- 
able. Yet he knew well, by personal expe- 
rience, the hardship and privations which the 
army had endured in this noble struggle for 
independence, and he had the cause of his late 
comrades very near his heart. But it was 
doubtful how much the most energetic efforts 



I 



IN THE STATE LEGISLATURE. 53 

could accomplish in the way of justice or even 
partial relief for these men. For the condition 
of the country at that period was indeed de- 
plorable. There was not a dollar in the federal 
treasury, and the State's exchequer was scarcely 
better supplied. The army was without pay, 
provisions, or clothing, simply because there 
was neither public money nor public credit. 
The repeated and now almost chronic failures 
of the States to comply with the pro rata req- 
uisition of the Congress for supplies had long 
ago begun to produce most disastrous results. 
It seemed as though the end had been reached 
in utter helplessness and bankruptcy. 

Such was the sense entertained by Congress 
of the imminence of the public danger, and such 
the apprehensions of civil convulsions result- 
ing from these evils, that they dispatched to the 
Eastern and Southern States a deputation, con- 
sisting of John Rutledge, of South Carolina, 
and George Clymer, of Pennsylvania, two oi 
their own body, to explain in person the condi- 
tion of affairs, and the danger which menaced 
the country through the delinquency of those 
States which remained so grossly backward in 
meeting the requisitions made by Congress on 
behalf of the army, for the relief of the public 
credit, and payment of the debts contracted in 
prosecuting the war for independence. In the 



54 JOHN MARSHALL. 

discharge of this duty, the delegates visited 
Richmond, and were permitted personally to 
address the General Assembly. As a mem- 
ber of that body, Marshall became an earnest 
advocate of their mission, and of all the meas- 
ures which tended to arrest immediate dan- 
ger, to apply the resources of the State to 
the discharge of her obligations, to strengthen 
the federal authority, and to enable it to per- 
form its duty towards the army and the pub- 
lic creditors. But the State of Virginia was at 
that time so weak and so exhausted by previous 
drains on her resources, and the confederacy 
was so feeble and powerless, hampered and even 
paralyzed by the absurd restrictions on its pow- 
ers imposed by the Articles of Confederation, 
that Marshall clearly perceived that the system 
of voluntary state contributions for the relief 
of the public necessities was a total failure, and 
that the only means of reanimating the public 
life and restoring public credit lay in the crea- 
tion of a more vigorous, independent, and com- 
prehensive general government. This convic- 
tion, first borne in upon him at this time, be- 
came thereafter the leading idea of his political 
creed, to which he adhered with firmness and 
constancy, but without rancor or bitterness of 
party feeling, to the end of his life. He thus 
early cast in his political lot with those who 



IN THE STATE LEGISLATURE. 55 

were soon to become consolidated as the Fed- 
eralist party ; and to the same principles he re^ 
mained unalterably attached to the end of his 
days. He did not adopt this political creed as 
a matter of free choice; but his mental charac- 
teristics were such that he inevitably fell in 
with this division of the nation. His natural 
way of thinking was the Federalist way. 

Some time after the close of his service in 
the legislature, he resigned his seat in the exec- 
utive council chamber, that he might devote 
himself more closely to his profession ; but the 
condition of the country and the necessities of 
the public service would not permit him to re- 
main in the coveted seclusion of private life. 
At the election in Fauquier, in the spring of 
1784, his old friends and constituents in that 
county again elected him a member of the 
General Assembly, although he was no longer 
an actual resident in the county, but only pre- 
served his eligibility there by reason of his re- 
taining a freehold in her soil. Three years 
later, in 1787, his adopted county of Henrico, 
where he resided near Richmond, paid him the 
same tribute of respect and confidence. Subse- 
quently, also, when a convention was called to 
deliberate on the Constitution of the United 
States, which had been framed by the general 
convention of delegates from the whole Union, 



56 JOHN MARSHALL. 

the same constituency elected him a member 
of that body, to which the new constitution 
was to be submitted for ratification or rejec- 
tion. 



CHAPTER V. 

m THE CONSTITUTIONAL CONVENTION OF 
VIRGINIA. 

1788. 

The election of Mr. Marshall to the Virginia 
Convention of 1788, called to ratify or reject 
the constitution proposed for the United States, 
was a marked tribute to his abilities on the 
part of the people of Henrico County, then 
comprising the city of Richmond, and was also 
striking evidence of his great personal popu- 
larity among them. For a decided majority of 
them were warmly enlisted in opposition to the 
proposed constitution. The Revolution indeed 
was over, and peace, with independence, had 
been achieved, but the whole country was in a 
state of great agitation as well as of profound 
depression and exhaustion, after the severe or- 
deal of the war. The advent of peace seemed 
to make more apparent the impoverishment 
caused by the war, and to bring unexpected 
difficulties and novel anxieties. Industry was 
paralyzed ; business almost at a stand ; the na- 



68 JOHl^ MARSHALL. 

tional finances scarcely existed except so far as 
debts might be said to constitute them ; those 
States which had made great sacrifices to pay 
their quota of contribution to the public service 
had been driven to the ruinous resort of issuing 
a paper currency for this purpose and for their 
own immediate wants ; more than three hun- 
dred millions of paper money had been put 
into circulation by the Continental Congress, 
bearing on its face a solemn pledge of the faith 
of the Union for its due payment, which faith 
had been as notoriously violated. This money 
had fallen so low in market value that it re- 
- quired one hundred dollars of it to pay one 
real dollar of indebtedness, and it soon lost 
even the semblance of any value at all.. The 
little specie that had lingered in the country 
had been slowly drained from it to pay for ab. 
solutely necessary supplies from abroad. Not 
even the interest on the national debt was met. 
The army had been disbanded unpaid, and the 
just claims of those brave men who had won 
our independence were heard only to be un- 
heeded. Private credit was generally hardly 
better than public. Agriculture and commerce 
— those breasts of the State — were dried up, 
and our artisans were idle and starving. 

Under such circumstances the popular mur- 
murs of discontent were deep and loud, and 



IN THE CONSTITUTIONAL CONVENTION. 59 

were only restrained from developing into overt 
acts of intestine strife by the wisdom and mod- 
eration of the best men and most influential 
patriots of the land. As Judge Story justly 
remarks in his striking picture of these times : 
" In short, we seemed to have escaped from the 
parent country only to sink into a more galling 
domestic bondage. Our very safety was felt to 
be mainly dependent upon the jealousy or for- 
bearance of foreign governments." A further 
aggravation of these evils arose from the utter 
hopelessness of any remedy or redress by the 
then existing national government. That gov- 
ernment, created by the Articles of Confedera- 
tion, was a temporary expedient to unite the 
States in the maintenance of the war, and was 
not at all adapted to the changed condition of 
affairs when that struggle was over. It pos- 
sessed scarcely any of the attributes of an effi- 
cient administration, and was in fact a govern- 
ment only in name. 

In view of such known and demonstrated 
imbecility, it seems strange at this day that 
the Articles of Confederation should have found 
any advocates or apologists of their longer en- 
durance. Nevertheless, the fact remains to 
surprise us that a large party in Virginia and 
other Southern States, in some of them even a 
majority of the people, comprising men of in- 



60 JOHN MARSHALL. 

telligence and influence who had borne promi- 
nent and distinguished parts in the late war of 
independence, at the first presentation of the 
subject arrayed itself in open opposition to any 
effort to found a new and more efficient gov- 
ernment. These persons insisted that the States 
were fully competent to administer national 
affairs under the existing articles, with some 
unimportant amendments. It is easy to be- 
lieve, from what we have already learned of 
his antecedents, that Mr. Marshall was not 
of this party. On the contrary, he lost no fit 
opportunity to declare his open advocacy of 
the call for a general convention of the States, 
and subsequently to make known his warm 
support of the constitution which that conven- 
tion framed. He took this position from an 
honest and intrepid conviction that it was wise 
and right, and without any calculation or con- 
sideration o^ the consequences, in the event of 
its unpopularity with the voters. As it was al- 
most certain that in Henrico County, where he 
then resided, a strong majority were opposed 
to the ratification of the constitution, he had 
little expectation of being a member of the 
convention. Ardently desirous that the con- 
stitution should be adopted, he had taken an 
active part in the discussion of its necessity in 
the General Assembly of Virginia, and before 



IN THE CONSTITUTIONAL CONVENTION. 61 

the people in those popular meetings which 
had been held in all parts of the country to 
consider and discuss its provisions. When it 
was known that a majority of the people of 
Henrico were opposed to it, he was assured 
that if he would become a candidate and would 
pledge himself to vote against it, all opposition 
to him would be withdrawn ; otherwise, he was 
forewarned that liis election would be stren- 
uously contested. He did not hesitate a mo- 
ment. He discarded the unworthy proposition, 
and proclaimed his firm determination to vote 
for the constitution if he should get the chance. 
Under these unpromising circumstances he was 
pressed into the canvass for a seat in the con- 
vention, and it was matter of astonishment to 
himself and his most sanguine friends when the 
result of the polling showed his triumphant 
election by a handsome majority. He said 
afterward : ''In the course of the session of 
1788, the increasing efforts of the enemies of 
the constitution made a deep impression ; and 
before its close a great majority showed a de- 
cided hostility to it. I took an active part in 
the debates on this question, and was uniform 
in the support of the proposed constitution." 

Apparently this election of a representative 
by a constituency opposed to his well-known 
views was the extraordinary result of his per- 



62 JOHN MARSHALL. 

sonal popularity. Very popular lie certainly 
was, so that perhaps no man in Virginia was 
more so, and he continued to enjoy the same 
favor throughout his long and useful life. He 
was eminently fitted by his character and tem- 
per to secure without solicitation, and to retain 
without artifice, the public esteem and the per- 
sonal confidence and friendship of all who 
knew him. His placid and genial disposition, 
his singular modesty, his generous heart, his 
kindly and unpretentious manners, the scrupu- 
lous respect he showed for the feelings and 
opinions of all men, his freedom from pride 
and affectation, from humility to the proud and 
from pride towards the humble, his candor, 
moderation, and integrity, formed such a char- 
acter that it might be said of him, as of Na- 
thanael of old : " Behold an Israelite indeed, in 
whom is no guile." These qualities, united to 
a higher intelligence and a larger measure of 
wisdom and common sense than fell to the 
share of most men, naturally conciliated the 
confidence and fixed the regard of his fellow- 
men. Though party spirit and the political ex- 
citements of the hour strongly tended to swerve 
men from their equilibrium and to blind their 
judgments, he was able to keep the even tenor 
of his way, unperturbed by the tempests of pas< 
sion or prejudice which raged round him. 



m TEE CONSTITUTIONAL CONVENTION. 63 

In view of the object of its convocation, and 
of the material which formed the membership 
of tlie body, it may be safely said that no delib- 
erative assembly ever met in any State more 
imposing for character, or more renowned for 
the moral and intellectual gifts and endow- 
ments which adorned it, than this Convention 
of 1788. It presented the very flower of the 
best population of the ancient commonwealth. 
The men of education, wealth, and probity, 
who had attained the highest rank in their 
several callings, who were most esteemed for 
purity of character and the elevation of their 
social relations, had been chosen. Nearly all 
of them, of both parties, had been engaged in 
the war of independence, and had served their 
country in the field or in the legislative or 
executive councils of the State. They had 
come up out of great tribulation through the 
storms and convulsions of war, and bore hon- 
orable scars, attesting the severity and sin- 
cerity of their self-consecration to the cause of 
liberty. They were not likely to undervalue 
the momentous task before them, in laying the 
foundations, of an entirely new government and 
establishing the polity of a nation. 

The convention met at Richmond on the 2d 
of June, 1788. The fame of the members who 
composed it, and the unrivaled eloquence of the 



64 JOHN MARSHALL. 

speakers who were to take part in the discus- 
sion of questions of sucli magnitude, created a 
vast expectation in the public mind, and at- 
tracted large audiences to the place of meeting. 
The facile pen of Wirt has preserved to us, in 
his "Life of Patrick Henry," a graphic picture 
of the gathering and of its debates. He says : — 

" Industry deserted its pursuits, and even dissipa- 
tion gave up its objects, for the superior enjoyments 
which were presented by the hall of the conven- 
tion. Not only the people of the town and neigh- 
borhood, but gentlemen from every quarter of the 
State, were seen thronging to the metropolis and 
speeding their eager way to the building in which the 
convention held its meetings. Day after day, from 
morning till night, the galleries of the house were 
continually filled with an anxious crowd, who forgot 
the inconvenience of their situation in the excess of 
their enjoyment ; and far from giving any interrup- 
tion to the course of the debate, they increased its in- 
terest and solemnity by their silence and attention. 
No bustle, no motion, no sound was heard among 
them, save only a slight movement when some new 
speaker arose whom they were all eager to see as 
well as to hear, or when some master-stroke of elo- 
quence shot thrilling along their nerves and extorted 
an involuntary and inarticulate murmur. Day after 
day was this banquet of the mind and of the heart 
spread before them with a delicacy and variety which 
could never cloy." 



IN TEE CONSTITUTIONAL CONVENTION. Q,^ 

When we enumerate on the one side, among 
those who 023posed the ratification of the con- 
stitution, men of such fame as Patrick Henry, 
George Mason, and William Grayson, an union 
of eloquence, learning, and ability unsurpassed 
and but rarely equaled, and behold in the oppo- 
site ranks the venerable Edmund Pendleton 
(who presided over their deliberations), James 
Madison, and Edmund Randolph, the Governor 
of the commonwealth, James Innes, the Attor- 
ney General of Virginia, a gentleman of known 
accomplishments and great eloquence, — " an 
eloquence," said Patrick Henry, " splendid, 
magnificent, and sufficient to shake the human 
mind," — Henry Lee of Westmoreland, George 
and William Nicholas, and John Marshall, then 
but thirty-three years of age, yet well known to 
fame, it is not surprising that the public mind 
of Virginia was shaken to its centre by this con- 
flict of the giants among her sons. 

As Mr. Marshall, although he had deeply 
pondered the great questions presented for con- 
sideration and debate, was always more willing 
to listen than to speak, and as he recognized 
and admitted the greater experience in public 
affairs, and the excellent abilities of the leaders 
on his side, he was not anxious himself to de- 
scend into the arena and personally to contend 
for the laurels of victory. When he did speak, 



Q6 JOHN MARSHALL. 

however, during the twenty-five daydiscuie 
session, he directed his reply chiefly ited r. 
Henry's speeches, rightly judging hind aoe 
the great leader of his party, and conchngg 
that, if this Coryphaeus of the opposition ite 
answered, all other assailants of the conari- 
tion were silenced. 

We shall lay before the reader, gleaned frcn 
the official report of the debates, some exam- 
ples, taken from Marshall's speeches, of his la- 
ical methods in argument. It would be desr- 
able to give some satisfactory sketch of his stye 
and manner when fairly launched in debate, bit 
all accounts concur that it was so peculiar as bo 
make description difficult if not impracticabl3. 
All agree, however, that it was very effective- 
He was in all respects a contrast to Mr. Henr;^, 
whose oratorical abilities were almost unrivaled. 
Henry was full of fire, passion, and impetuosity, 
he was by no means devoid of the power oi 
vigorous conception and clear expression, buv 
his style and manner, especially in his exor- 
dium, were by no means prepossessing or inspir- 
ing. A clever writer, ^ speaking of these times,, 
thus describes Mr. Marshall as a speaker : — 

" So great a mind, perhaps, like large bodies in tht^ 

1 Sketches and Essays of Public Characters, by Francis W. 
Gilmer. 



IN THE CONSTITUTIONAL CONVENTION. 67 

physical world, is with difficulty set in motion. That 
this is the case with Mr. Marshall is manifest from 
his mode of entering on an argument, both in conver- 
sation and in public debate. It is difficult to rouse 
his faculties. He begins with reluctance, hesitation, 
and vacancy of eye. Presently his articulation be- 
comes less broken, his eye more fixed, until finally 
his voice is full, clear, and rapid, his manner bold, and 
his whole face lighted up with mingled fires of genius 
and passion, and he pours forth the unbroken stream 
of eloquence in a current, deep, majestic, smooth, and 
strong. He reminds one of some great bird, which 
flounders on the earth for a while before it acquires 
impetus to sustain its soaring flight." 

The debates in the convention took a wide 
and discursive range, but Mr. Marshall was 
averse, from habit, to general disquisition and 
logical platitudes. Preferring directness and 
concentration in reasoning, he selected for his 
ow^n discussion three features in the proposed 
constitution, with which he was best acquainted 
and which its opponents deemed most vulner- 
able. These were, first, the power granted to 
Congress to lay taxes for the support of the 
general government, without relegating that 
duty to the States. Second, the power given 
to the President to call out the militia. Third, 
the judicial power conferred on the federal 
government. These had been strongly de- 
nounced as destructive to the rights and even 



68 JOHN MARSHALL. 

the existence of the States. On these several 
points he spoke with much earnestness and 
force. After a brief general survey of the prin- 
ciples of true government, and after pointing 
out that the real issue involved in these de- 
bates was a choice between despotism and de- 
mocracy, he pursues the inquiry as to the safety 
of conferring power on Congress to raise money 
by taxation, to enable it to perform its func- 
tions, in the following terms : — 

" I conceive that the object of the discussion now 
before us is, whether democracy or despotism be most 
eligible. I am sure that those who framed the sys- 
tem submitted to our investigation, and those who 
now support it, intend the establishment and security 
of the former. The supporters of the constitution 
claim the title of being firm friends of the liberty 
and the rights of mankind. They say that they 
consider it as the best means of protecting liberty. 
"We, sir, idolize democracy. Those who oppose \l 
have bestowed eulogiums on monarchy. We prefe** 
this system to any monarchy, because we are con- 
vinced that it has a greater tendency to secure our 
liberty and promote our happiness. We admire it 
because we think it a well-regulated democracy. It 
is recommended to the good people of this country ; 
they are through us to declare whether it be such a 
plan of government as will establish and secure their 
freedom. 

" Permit me to attend to what the honorable gentle- 



IN THE CONSTITUTIONAL CONVENTION. 69 

man [Patrick Henry] has said. He has expatiated 
on the necessity of a due attention to certain maxims ; 
to certain fundamental principles, from which a great 
people ought never to depart. I concur with him 
in the propriety of the observance of such maxims. 
They are necessary in any government, but more 
essential to a democracy than to any other. What 
are the favorite maxims of democracy ? A strict 
observance of justice and public faith, and a steady 
adherence to virtue. These, sir, are the principles 
of a good government. No mischief, no misfortune, 
ought to deter us from a strict observance of justice 
and public faith. 

" Would to Heaven that these principles had been 
observed under the present government ! Had 
this been the case, the friends of liberty would not 
be so willing now to part with it. Can we boast 
that our government is founded on these maxims? 
Can we pretend to the enjoyment of political free- 
dom or security, when we are told that a man has 
been, by an act of Assembly, struck out of existence 
without trial by jury, without examination, without 
being confronted by his accusers and witnesses, with- 
out the benefits of the law of the land ? Where is 
our safety when we are told that this act was justifi- 
able, because the person was not a Socrates ? What 
has become of the worthy member's maxims ? Is 
this one of them ? Shall it be a maxim that a man 
shall be deprived of his life without the benefit of 
law ? Shall such a deprivation of life be justified by 
answering that the man's life was not taken secuw 



70 JOHN MARSHALL. 

dmn artem, because he was a bad man ? ^ Shall it be 
a maxim that government ought not to be empowered 
to protect virtue ? He says we wish to have a strong, 

1 This reference is to the case of Josiah Phillips, which 
Governor Kandolph had adduced as an instance of flagrant 
departure from national principles, as well as a violation of the 
Constitution of Virginia. Randolph had thus stated the facts 
of the case : " From mere reliance on general reports a gen- 
tleman in the House of Delegates informed the house that a 
certain man (Phillips) had committed several crimes, and was 
running at large, perpetrating other crimes. He therefore 
moved for leave to attaint him. He obtained that leave in- 
stantly ; no sooner did he obtain it than he drew from his 
pocket a bill ready written for that effect ; it was read three 
times in one day, and carried to the Senate. I will not say 
that it passed the same day through the Senate ; but he was 
attainted very speedily and precipitately, without any proof 
better than vague reports. Without being confronted with 
his accusers and witnesses, without the privilege of calling 
for evidence in his behalf, he was sentenced to death and was 
afterwards actually executed. Was this arbitrary deprivation 
of life, the dearest gift of God to man, consistent with the 
genius of a republican government ? Is this compatible with 
the spirit of freedom ? This, sir, has made the deepest im- 
pression on my heart, and I cannot contemplate it without 
iiorror." Elliott's Debates, vol. iii. p. 66. 

Patrick Henry thus replied: "The honorable gentleman 
has given you an elaborate account of what he judges tyran- 
nical legislation, and an ex post facto law, in the case of Josiah 
Phillips. He has misrepresented the facts. That man was 
not executed by a tyrannical stroke of power. Nor was he a 
Socrates. He was a fugitive murderer and an outlaw ; a man 
who commanded an infamous banditti. And, at a time when 
the war was at the most perilous stage, he committed the most 
cruel and shocking barbarities. He was an enemy to the human 
name. Tho.se who declare war against the human race may be 



IN THE CONSTITUTIONAL CONVENTION. 71 

energetic, powerful government. We contend for a 
well-regulated democracy. He insinuates that the 
power of the government has been enlarged by the 
convention, and that we may apprehend it will be 
enlarged by others. The convention did not, in fact, 
assume any power. They have proposed to our 
consideration a scheme of government, which they 
thought advisable. We are not bound to adopt it, if 
we disapprove of it. Had not every individual in 
this community a right to tender that scheme which 
he thought most conducive to the welfare of his 

struck out of existence as soon as they are apprehended. He 
was not executed according to those beautiful legal ceremonies 
which are pointed out by the laws in criminal cases. The enor- 
mity of his crimes did not entitle him to it. I am truly a friend 
to legal forms and methods ; but, sir, in this case, the occasion 
warranted the measure. A pirate, an outlaw, or a common 
enemy to all mankind, mny be put to death at any time. It is 
justified by the laws of nature and nations." Ibid. p. 140. 

When this act of attainder passed, Henry was the Governor 
of Virginia and Jefferson a member of the Assembly. Ran- 
dolph, who had been hard pressed by Henry in debate, and 
arraigned for inconsistency in now supporting the constitution 
when, as a member of the federal convention, he had refused 
to sign it, brought forward the case of Phillips as a means of 
retaliation. But Jefferson says that Phillips was not executed 
under the act of attainder ; that he was indicted at common 
law for either robbery or murder; was regularly tried, con- 
victed, and executed. No use, he says, was ever made of the 
act of attainder. Governor Randolph acted for the Common- 
wealth in the prosecution, he being, at that time. Attorney 
General. Jefferson supposes that there must have been some 
mistake in the report of Randolph's statement of the case in 
the convention, as well as in Henry's reply. 
See Jeflferson's Works, vol. vi. pp. 369-440. 



72 JOHN MARSHALL. 

country ? Have not several gentlemen already dev 
monstrated that the convention did not exceed its 
powers ? But the Congress have the power of mak- 
ing bad laws, it seems. The Senate with the Presi- 
dent, he informs us, may make a treaty which shall 
be disadvantageous to us ; and that, if they be not 
good men, it will not be a good constitution. I shall 
ask the worthy member only, if the people at large, 
and they alone, ought to make laws and treaties ? 
Has any man this in contemplation ? You cannot 
exercise the powers of government personally your- 
selves. You must trust to agents. If so, will you 
dispute giving them the power of acting for you, 
from an existing possibility that they may abuse it ? 
As long as it is impossible for you to transact your 
business in person, if you repose no confidence in 
delegates, because there is a possibility of their abus- 
ing it, you can have no government ; for the power 
of doing good is inseparable from that of doing evil. 

" Let me pay attention to the observation of the 
gentleman who was last up [Mr. Monroe], that the 
power of taxation ought not to be given to Congress. 
This subject requires the undivided attention of this 
house. This power I think essentially necessary ; 
for without it there will be no efficiency in the gov- 
ernment. We have had a sufficient demonstration of 
the vanity of depending on requisitions. How, then, 
can the general government exist without this power ? 
The possibility of its being abused is urged as an 
argument against its expediency. To very little 
purpose did Virginia discover the defects in the old 



IN TEE CONSTITUTIONAL CONVENTION. 73 

system ; to little purpose indeed did she propose im- 
provements ; and to no purpose is this plan con- 
structed for the promotion of our happiness, if we 
refuse it now because it is possible it may be abused. 
The confederation has nominal powers, but no means 
to carry them into effect. If a system of government 
were devised by more than human intelligence it 
would not be effectual if the means were not ade- 
quate to the power. All delegated powers are liable 
to be abused. Arguments drawn from this source 
go in direct opposition to all government, and in 
recommendation of anarchy. The friends of the 
constitution are as tenacious of liberty as its enemies. 
They wish to give no power that will endanger it. 
They wish to give the government powers to secure 
and protect it. Our inquiry here must be, whether 
the power of taxation be necessary to perform the 
objects of the constitution, and whether it be safe, 
and as well guarded as human wisdom can do it. 
What are the objects of the national government ? 
To protect the United States and to promote the 
general welfare. Protection in time of war is one 
of its primal objects. Until mankind shall cease to 
have avarice and ambition, wars shall arise. There 
must be men and money to protect us. How are 
armies to be raised ? Must we not have money for 
that purpose ? But the honorable gentleman says 
that we need not be afraid of war. Look at history, 
which has been so often quoted. Look at the great 
volume of human nature. They will both tell you 
that a defenseless country cannot be secure. The 



74 JOHN MARSHALL. 

nature of man forbids us to conclude that we are in 
no danger from war. The passions of men stimulate 
them to avail themselves of the weakness of others. 
The powers of Europe are jealous of us. It is our 
interest to watch their conduct, and guard against 
them. They must be pleased with our disunion. If 
we invite them, by our weakness, to attack us, will 
they not do it ? If we add debility lo our present 
situation, a partition of America may take place. It 
is then necessary to give the government that power, 
in time of peace, which the necessity of war will ren- 
der indispensable, or else we shall be attacked unpre- 
pared. The experience of the world, a knowledge 
of human nature, and our own particular experience, 
will confirm this truth. When danger shall come 
upon us, may we not do what we were on the point 
of doing once already, that is, appoint a dictator ? 
. . . We may now regulate and frame a plan that 
will enable us to repel attacks, and render a recur- 
rence to dangerous expedients unnecessary. If we 
are prepared to defend ourselves, there will be little 
inducement to attack us. But if we defer giving 
the necessary power to the general government till 
the moment of danger arrives, we shall give it then 
and with an unsvaring hand. 

" I defy you to produce a single instance where 
requisitions on several individual States, composing 
a confederacy, have been honestly complied with. 
Did gentlemen expect to see such punctuality com- 
plied with in America ? If they did, our own ex- 
perience shows the contrary." ... "A bare sense oj 



IN THE CONSTITUTIONAL CONVENTION. lb 

fluty or a regard to propriety is too feeble to iDtluce 
men to comply with obligations. We deceive our- 
selves, if we expect any efficacy from these. If 
requisitions will not avail, the government must have 
the sinews of war some other way. Requisitions 
cannot be effectual. They will be productive of 
delay, and will ultimately be inefficient. By direct tax- 
ation the necessities of the government will be sup- 
plied in a peaceable manner, without irritating the 
minds of the people. But requisitions cannot be 
rendered efficient without a civil war, without great 
expense of money and the blood of our citizens." 

" Is the system so organized as to make taxation 
dangerous? ... I conceive its organization to be 
sufficiently satisfactory to the warmest friend of free- 
dom. No tax can be laid without the consent of the 
House of Representatives. If there be no impro- 
priety in the mode of electing the representatives, 
can any danger be apprehended ? They are electee! 
by those who can elect representatives in the state 
legislature. How can the votes of the electors be 
influenced ? By nothing but the character and con- 
duct of the men they vote for." 

" If they are to be chosen for their wisdom, virtue, 
and integrity, what inducement have they to infringe 
on our freedom ? We are told that they may abuse 
their power. Are there strong motives to prompt 
them to abuse it ? Will not such abuse militate 
against their own interest ? Will not they and their 
friends feel the effects of iniquitous measures ? Does 
the representative remain in office for life ? Does 



76 JOBN MARSHALL. 

he transmit his title of representative to his son? 
Is he secured from the burdens imposed on the com- 
munity ? To procure their reelection it will be 
necessary for them to confer with the people at large 
and convince them that the taxes laid are for their 
good. If I am able to judge on the subject, the 
power of taxation now before us is wisely conceded, 
and the representatives wisely elected." 

*' The extent of the country is urged as another 
objection, as being too great for a republican govern- 
ment. This objection has been handed from author 
to author, and has been certainly misunderstood and 
misapplied. To what does it owe its source ? To 
observations and criticisms on governments where 
representations did not exist. As to the legislative 
power, was it ever supposed inadequate to any ex- 
tent ? Extent of country may render it difficult to 
execute the laws, but not to legislate. Extent of 
country does not extend the power. What will be 
sufficiently energetic and operative in a small ter- 
ritory will be feeble when extended over a wide- 
extended country. The gentleman tells us there are 
no checks in this plan. What has become of his 
enthusiastic eulogium on the American spirit? We 
should find a check and control, when oppressed, from 
that source. In this country there is no exclusive 
personal stock of interest. The interest of the com- 
munity is blended and inseparably connected with 
that of the individual. When he promotes his own, 
he promotes that of the community. When we con 
suit the common good, we consult our own. When 



IN THE CONSTITUTIONAL CONVENTION. 77 

he desires such checks as these, he will find them 
abundantly here. They are the best checks. What 
has become of his eulogium on the Virginia Consti- 
tution ? Do the checks in this plan appear less ex- 
cellent than those of the Constitution of Virginia ? 
If the checks in the constitution be compared to the 
checks in the Virginia Constitution, he will find the 
better security in the former." 

" The worthy member [Patrick Henry] has con- 
cluded his observations by many eulogiums on the 
British Constitution. It matters not to us whether 
it be a wise one or not. I think that, for America 
at least, the government on your table is very much 
superior to it. I ask you if your House of Repre- 
sentatives would be better than it is if a hundredth 
part of the people were to elect a majority of them? 
If your Senators were for life, would they be more 
agreeable to you ? If your President were not ac- 
countable to you for his conduct, — if it were a con- 
stitutional maxim, that he could do no wrong, — 
would you be safer than you are now ? If you can 
answer Yes to these questions, then adopt the British 
Constitution. If not, then, good as that government 
may be, this is better. 

" The worthy gentleman who was last up [Mon- 
roe] said the confederacies of ancient and modern 
times were not similar to ours, and that consequently 
reasons which applied against them could not be 
urged against it. Do they not hold out one lesson 
very useful to us ? However unlike in other re- 
spects they resemble it in its total in efficacy. They 



78 JOHN MARSHALL. 

warn us to shun their calamities and to place in out 
government those necessary powers, the want of 
which destroyed them. I hope we shall avail our- 
selves of their misfortunes without experiencing 
them. There was something peculiar in one obser- 
vation he made. He said that those who governed the 
cantons of Switzerland were purchased by foreign 
powers, which was the cause of their uneasiness and 
trouble. How does this apply to us ? If we adopt 
such a government as theirs, will it not be subject to 
the same inconvenience ? Will not the same cause 
produce the same effect ? What shall protect us 
from it ? What is our security ? He then proceeded 
to say, the causes of war are removed from us ; that 
we are separated by the sea from the powers of 
Europe and need not be alarmed. Sir, the sea 
makes them neighbors to us. Though an immense 
ocean divides us we may speedily see them with us. 
What dangers may we not apprehend to our com- 
merce ? May not the Algerines seize our vessels ? 
Cannot they, and every other predatory and maritime 
nation, pillage our ships and destroy our commerce, 
without subjecting themselves to any inconvenience ? 
He would, he said, give the general government all 
necessary powers. If anything be necessary, it must 
be so to call forth the strength of the Union when 
we may be attacked, or when the general purposes 
of America require it. The worthy gentleman then 
proceeded to show that our present exigencies are 
greater than they will ever be again. Who can 
penetrate into futurity ? How can any man pretend 



IN THE CONSTITUTIONAL CONVENTION. 79 

to say that our future exigencies will be less than 
our present ? The exigencies of nations have been 
generally commensurate to their resources. It would 
be the utmost impolicy to trust to a mere possibility 
of not being attacked, or obliged to exert the strength 
of the community." 

" He then told you that your continental govern- 
ment will call forth the virtue and talents of Amer- 
ica. This being the case, will they encroach on the 
power of the state governments ? Will our most 
virtuous and able citizens wantonly attempt to de- 
stroy the liberty of the people ? Will the most vir- 
tuous act the most wickedly ? I differ in opinion 
from the worthy gentleman. I think the virtue and 
talents of the members of the general government 
will tend to the security, instead of the destruction, of 
our liberty. I think that the power of direct tax- 
ation is essential to the existence of the general 
government, and that it is safe to grant it. If this 
power be not necessary and as safe from abuse as any 
delegated power can possibly be, then I say that the 
plan before us is unnecessary, for it imports not what 
system we have unless it have the power of protect- 
ing us in time of peace and war." 

In respect to the power conferred on the 
President to call out the militia, to repel inva- 
sion, and to suppress insurrection, etc., Mr. 
Marshall asked, in reply to the critics of the 
constitution, whether gentlemen were serious 
when they asserted that, if the state govern- 



80 



JOHN MARSHALL. 



ments had power to interfere with the militia, 
it was only by implication. 

" If they were, he asked the committee whether 
the least attention would not show that they were 
mistaken. The state governments did not derive 
their powers from the general government ; but 
each government derived its powers from the people, 
and each was to act according to the powers given to 
it. Would any gentleman deny this ? He demanded 
if powers not given were retained by implication. 
Could any man say so? Could any man say that 
this power was not retained by the States, as they 
had not given it away ? For does not a power re- 
main until it is given away ? The state legislatures 
had power to command and govern their militia be- 
before, and have it still, undeniably, unless there be 
something in this constitution that takes it away.'* 
" The truth is, that when power is given to the gen- 
eral legislature, if it was in the state legislature 
before, both shall exercise it, unless there be an 
incompatibility in the exercise by one to that by the 
other, or negative words precluding the state govern- 
ments from it. But there are no negative words 
here. It rests, therefore, with the States. To me 
it appears then unquestionable that the state govern- 
ments can call forth the militia, in case the constitu- 
tion should be adopted, in the same manner as they 
would have done before its adoption. 

" When the government is drawn from the people 
and depending on the people for its continuance, op 



IN THE CONSTITUTIONAL CONVENTION. 81 

pressive measures will not be attempted, as they will 
certainly draw on their authors the resentment of 
those on whom they depend. On this government, 
thus depending on ourselves for its existence, I will 
rest my safety, notwithstanding the danger depicted 
by the honorable gentlemen. I cannot help being 
surprised that the worthy member thought this power 
so dangerous. What government is able to protect 
you in time of war ? Will any State depend on its 
own exertions ? The consequence of such depend- 
ence and withholding this power from Congress will 
be that State will fall after State, and be a sacrifice to 
the want of power in the general government. United 
we are strong ; divided we fall. Will you pre- 
vent the general government from drawing the mili- 
tia of one State to another, when the consequence 
will be that every State must depend on itself? 
The enemy, possessing the water, can quickly go 
from one State to another. No State will spare to 
another its militia, which it conceives necessary for 
itself. It requires a superintending power in order to 
call forth the resources of all to protect all. If this 
be not done, each State will fall a sacrifice. This 
system merits the highest applause in this respect. 
The honorable gentleman said that a general regula- 
tion may be made to inflict punishment. Does he 
imagine that a militia law is to be ingrafted on the 
scheme of government, so as to render it incapable 
of being changed ? The idea of the worthy member 
supposes that men renounce their own interests. 
This would produce general inconveniences through- 



82 JOHN MARSHALL. 

out the Union, and would be equally opposed by all 
the States. But the worthy member fears that in one 
part of the Union they will be regulated and dis- 
ciplined, and in another neglected. This danger is 
enhanced by leaving this power to each State, for 
some States may attend to their militia, and others 
may neglect them. If Congress neglect our militia, 
we can arm them ourselves. Cannot Virginia import 
arms ? Cannot she put them into the hands of her 
militia men ? " 

Referring to that clause of the constitution 
which related to the federal judicial system, 
Mr. Marshall said : — 

" Mr. Chairman, this part of the plan before us is 
a great improvement on that instrument from which 
we are now departing. Here are tribunals appointed 
for the decision of controversies which were before 
either not at all, or improperly, provided for. That 
many benefits will result from this to the members 
of the collective society every one confesses. Unless 
its organization be defective, and so constructed as to 
injure instead of accommodating the convenience of 
the people, it merits our approbation. After such a 
candid and fair discussion by those gentlemen who 
support it, after the very able n^nner in which 
they have investigated and examinfed it, I conceived 
it would be no longer considered as so very defective, 
and that those who opposed it would be convinced of 
the impropriety of some of their objections. But I 
perceive that they still continue the same opposition. 



IN THE CONSTITUTIONAL CONVENTION. 83 

Gentlemen have gone on an idea that the federal 
courts will not determine the causes which may come 
before them with the same fairness and impartiality 
with which other courts decide. What are the rea- 
sons of this supposition ? Do they draw them from 
the manner in which the judges are chosen, or the 
tenure of their office? What is it that makes us 
trust our judges ? Their independence in office, and 
manner of appointment. Are not the judges of the 
federal court chosen with as much wisdom as the 
judges of the state governments ? Are they not 
equally, if not more, independent? If so shall we 
not conclude that they will decide with equal impar- 
tiality and candor? If there be as much wisdom and 
knowledge in the United States as in a particular 
State, shall we conclude that that wisdom and knowl- 
edge will not be equally exercised in the selection of 
judges ? " 

" With respect to its [the federal judiciary's] cog- 
nizance, in all cases arising under the constitution 
and the laws of the United States, he [George Mason] 
says that, the laws of the United States being para- 
mount to the laws of the particular State, there is no 
case but what this will extend to. Has the govern- 
ment of the United States power to make laws on 
every subject? Does he understand it so ? Can they 
make laws affecting the mode of transferring prop- 
erty, or contracts, or claims, between citizens of the 
same State ? Can they go beyond the delegated pow- 
ers ? If they were to make a law not warranted by 
any of the powers enumerated, it would be considered 



84 JOHN MARSHALL. 

by the judges as an infringement of the constitution 
which they are to guard. They would not consider 
such a law as coming under their jurisdiction. They 
would declare it void." 

" How disgraceful is it that the state courts cannot 
be trusted, says the honorable gentleman. What is 
the language of the constitution ? Does it take away 
their jurisdiction ? Is it not necessary that the fed^ 
eral courts should have cognizance of cases arising 
under the constitution and laws of the United States ? 
What is the service or purpose of a judiciary, but to 
execute the laws in a peaceable, orderly manner, 
without shedding blood, or creating a contest, or 
availing yourselves of force ? If this be the case, 
where can its jurisdiction be more necessary than 
here?" 

" With respect to disputes between a State and the 
citizens of another State, its jurisdiction has been 
decried with unusual vehemence. I hope that no 
gentleman will think that a State will be called at 
the bar of the federal court.-^ Is there no such case 
at present ? Are there not many cases in which 
the legislature of Virginia is a party, and yet the 
State is not sued ? It is not rational to suppose 
that the sovereign power should be dragged before a 
court. The intent is to enable States to recover 
claims from individuals residing in other States. I 

1 This, however, was afterwards done, in the case of Chis« 
holm V. Georgia. The decision of the court in that case led 
to an amendment of the Constitution, forbidding such an ex- 
ercise of authority. 



IN TUE CONSTITUTIONAL CONVENTION. 85 

contend that this construction is warranted by the 
words. But, say they, there will be partiality in it, 
if a State cannot be defendant, if an individual 
cannot proceed to obtain judgment against a State, 
though he may be sued by a State. It is necessary 
to be so, and cannot be avoided, 1 see a difficulty 
in making a State defendant which does not pre- 
vent its being plaintiff. If this be only what can- 
not be avoided, why object to the system on that 
account ? If an individual has a just claim against 
any particular State, is it to be presumed that, on 
application, he will not obtain satisfaction ? But 
how could a State recover any claim from a citizen 
of another State, without the establishment of these 
tribunals ? 

" The honorable member objects to suits being in- 
stituted in the federal courts by the citizens of one 
State against the citizens of another State. Were I 
to contend that this was unnecessary in all cases, and 
that the government, without it, would be defective, 1 
should not use my own judgment. But are not the 
objections to it carried too far ? Though it may not, 
in general, be absolutely necessary, a case may hap- 
pen, as has been observed, in which a citizen of one 
State ought to be able to recur to this tribunal to 
recover a claim from the citizen of another State. 
What is the evil which this can produce ? Will he 
get more justice there ? The independence of the 
judges forbids it. What has he to get? Justice. 
Shall we object to this because the citizen of another 
State can obtain justice without applying to our 



86 JOHN MARSHALL. 

state courts ? It may be necessary with respect to 
the laws and regulations of commerce, which Con- 
gress may make. It may be necessary in cases of 
debt, and some other controversies. In claims for 
land, it is not necessary, but it is not dangerous. In 
the court of which State will it be instituted ? said 
the honorable gentleman. It will be instituted in 
the court of the State where the defendant resides, 
where the law can come at him, and nowhere else. 
By the laws of which State will it be determined ? 
said he. By the laws of the State where the con- 
tract was made. According to those laws and those 
only can it be decided. Is this a novelty ? No ; it 
is a principle in the jurisprudence of this common- 
wealth. If a man contracted a debt in the East 
Indies and it was sued for here, the decision must be 
consonant to the laws of that country." 

These examples of the clearness of Mar- 
shall's reasoning serve to show how it was that, 
at his age, he could win the distinction as a 
debater which he achieved in the convention. 
He seemed to imj^ress his opponents very favor- 
ably, and though he might not have conquered 
them by his massive logic, he conciliated their 
esteem and good-will, which Mr. Henry very 
handsomely acknowledged. " I have," Henry 
said, "the highest veneration and respect for 
the honorable gentleman, and I have expe- 
rienced his candor on all occasions." 

The opponents of the constitution were 



IN THE CONSTITUTIONAL CONVENTION. 87 

largely in the ascendant at the meeting and in 
the early stages of the convention, but, in the 
end, its supporters prevailed by a majority of 
ten votes ; a result which frankness compelled 
the victors to confess was not due altogether 
to superior merit in argument, but largely also 
to the gradual progress of public opinion, and to 
the persuasive fact that, while the convention 
was still engaged in grave debate on the subject 
at Richmond, news was received that nine out 
of the thirteen States had already given in 
their adhesion to its adoption — a sufficient num- 
ber to insure its success. 






CHAPTER VI. 

BETUKN TO THE BAK. 

1788-1797. 

After his service in the convention Mr. 
Marshall again resolved to retire from public 
life and devote himself to his law business ; a 
course now rendered more necessary by his 
slender fortune and growing family. But again 
he was overruled by the earnest appeals of his 
neighbors to represent them in the ensuing 
legislature. It had now become manifest that, 
notwithstanding the adoption of the United 
States Constitution, the large minority opposed 
to it were still very active and formidable in 
their hostility, and were resolved to insure an 
anti-federal ascendancy in that body. Some 
of them were willing even to embarrass the 
new government by any means that might 
seem likely to defeat its success. Under these 
circumstances and urged by his constituency, 
Marshall felt obliged to forego his intended 
retirement, and thereupon so great were his 
popularity and influence that he was again 



RETURN TO THE BAR. 89 

triumphantly elected, notwithstanding the fact 
that an anti-federal majority in the county was 
known to be against him. He held the posi- 
tion until the spring of 1791. 

In the first session of the General Assembly 
after the adoption of the constitution, he found 
his party in a minority. The opposition had se- 
cured the ascendancy in that body and elected, 
as the first Senators to Congress from Vir- 
ginia, Mr. Grayson and Mr. Richard Henry 
Lee, both of whom had opposed the constitu- 
tion, in preference to Mr. Madison and Mr. 
Pendleton, who had so warmly supported it. 
Such was the virulence of party spirit even at 
that early day that, notwithstanding the over- 
whelming personal popularity of Washington, 
elected without opposition the first President 
of the United States, all the leading measures 
of his administration were warmly debated and 
criticised by the Virginia legislature, with a 
watchful jealousy. 

In so excited a state of popular feeling, Mar- 
shall's triumph was a very remarkable instance 
I at once of the magnanimity of many anti-fed- 
eralists and of his high repute and prestige. 
But such honors were not so rare in those days 
as they have since become ; similar notable in- 
stances, occurring about the same time, will be 
recalled. The truth is that the mass of the 



90 JOHN MARSHALL. 

people were singularly fair-minded and anxious 
to work out for the best the momentous prob- 
lem before them. Their behavior throughout 
this crisis was admirably liberal and temperate. 

Marshall cherished the highest confidence in 
the wisdom and patriotism of Washington, and 
gave his earnest support to all those measures 
of the national administration which he could 
approve, although they provoked the animad- 
version of those who professed to see the horrid 
Gorgon of consolidation in every measure pro- 
posed as a remedy for existing disorders. In 
the halls of the legislature of Virginia these 
questions were debated with freedom, earnest- 
ness, and ability. In these discussions Mr. Mar- 
shall participated with even more than his 
usual power, defending the administration of 
Washington with great force of argument, but 
it is mortifying to reflect with what little effect. 
The current of party feeling proved too mighty 
to be resisted. It was an anomalous condition of 
things that in Virginia at that time Washing- 
ton, who should have been the most honored 
and beloved of her sons and benefactors, was 
opposed in almost every important measure of 
his administration. The State seemed to set 
the example in opposition, and to lead the way 
in disaffection. 

Fortunately this unwelcome posture of affairs 



RETURN TO THE BAR. 91 

at last gave Mr. Marshall his long-coveted op- 
portunity to retire from public life and devote 
himself, without reserve, to the practice of his 
profession. In 1792 he positively declined a 
reelection to the legislature, and for the suc- 
ceeding three years devoted himself with en- 
ergy to his professional duty. The location of 
his office in Richmond, where the legislature 
met annually, had enabled him to preserve, in 
a great degree, his practice in the courts when- 
ever he was not occupied with his legislative 
duties. Now that he could again give his un- 
divided attention to the law, his business rap- 
idly increased and became handsomely remu- 
nerative. It is said that he was employed in 
nearly every important case in the state and 
federal courts. 

The system of practice was very favorable to 
the growth and success of eminent counsel at 
the metropolitan bar. As already stated, it sel- 
dom happened that provincial lawyers, how- 
ever competent and able, owing to the distance, 
delay, and expense of travel, followed their cases 
into the appellate courts, which held their ses- 
sions in Richmond. Clients who appealed their 
causes had to resort to counsel in that city, and 
armed with a copy of the record and a retain- 
ing fee of not less than one hundred dollars, 
they sought tlie advice of those eminent law- 
yers who practiced in the courts of appeal. 



92 JOHN MARSHALL, 

Mr. Marshall was now so well known through- 
out the commonwealth, and so highly appreci- 
ated in his profession, that he commanded the 
largest share of this practice. The vohimes of 
Call's and Washington's Reports of Causes ar- 
gued at that early period in the court of ap- 
peals attest the number and importance of the 
cases in which he appeared as counsel. This, 
of necessity, extended his professional corre- 
spondence with his brethren of the bar through- 
out the State. Some of these letters from him 
have survived the lapse of time, and furnish oc- 
casional glimpses of his friendly geniality and 
the fashion of his wit. For example, here is an 
extract from one to his friend Judge Archibald 
Stuart : — 

" I cannot appear for Donaghoe. I do not decline 
his business from any objection to his hank. To that 
I should like very well to have free access, and would 
certainly discount yrom it as largely as he would per- 
mit ; but I am already fixed by Rankin, and as those 
who are once in the bank do not, I am told, readily 
get out again, I despair of being ever able to touch 
the guineas of Donaghoe. 

" Shall we never see you again in Richmond ? I was 
very much rejoiced when I heard that you were hap- 
pily married, but if that amounts to a ne exeat, which 
is to confine you entirely to your side of the moun- 
tain, I shall be selfish enough to regret your good 
fortune, and almost to wish you had found some little 



RETURN TO THE BAR. 93 

crooked rib among the fish and oysters which would 
once a year drag you into this part of our terraque- 
ous globe. You have forgotten, I believe, the solemn 
compact we made to take a journey to Philadelphia 
together this winter, and superintend for a while the 
proceedings of Congress. I wish very much to see 
you. I want to observe how much honester men you 
j and I are [than] half one's acquaintance. Seriously, 
there appears to me every day to be more folly, envy, 
\ malice, and damned rascality in the world than there 
, was the day before ; and I do verily begin to think 
I that plain, downright honesty and unintriguing integ- 
j rity will be kicked out of doors. 
] "We fear, and not without reason, a war. The 
1 man does not live who wishes for peace more than I 
' do, but the outrages committed upon us are beyond 
i human bearing. Farewell. Pray heaven we may 
weather the storm. Yours, 

" J. Marshall." 



With the known abilities and the avowed 
political opinions of Mr. Marshall, it was al- 
most impossible for him to withdraw himself 
entirely from public life. The foreign policy 
of Washington was not less warmly attacked 
than his domestic. A fierce and bitter war was 
pending between France and England, and 
strong efforts were made by each to draw the 
new government of the United States into the 
strife, and to throw its weight into their own 
scale. Threats were employed by each side 



94 JOHN MARSHALL. 

to effect this purpose, and France resorted also 
to blandishments and intrigues. Thomas Jef- 
ferson, although the secretary of state in Wash- 
ington's cabinet, already was, or soon became, 
the acknowledged leader of the anti- federal 
party. He hated England, and opposed the 
idea of an Anglican alliance, while he more 
furtively but warmly affiliated with France. 
Early in the year 1793, the French Directory 
dispatched as minister to the United States the 
famous M. Genet, who landed in Charleston, 
South Carolina, and before presenting his cre- 
dentials to Washington, proceeded at once, with 
almost incredible presumption, to issue letters of 
marque and reprisal against British commerce, 
to fill up officers' blank commissions w^hich he 
had brought out with him from France, and to 
dispatch privateers to prey upon British ships 
at sea, so that the French war ship in which he 
had made the voyage over had actually cap- 
tured prizes in American waters before the 
envoy had had his audience of reception by the 
President. He remained long in Charleston, 
and seemed purposely to delay his journey to 
the seat of government in order to give time foi 
the seeds of sedition, which he was industri- 
ously sowing, to germinate, and to commit the 
people so thoroughly in advance of any govern* 
mental action that it would be found imprao- 



RETURN TO THE BAR. 95 

fcicable to avoid precipitating hostilities with 
England. In this the Frenchman counted 
largely on the feebleness of the administration, 
and on the strength of the opposition to it. 
These opponents formed a strong Gallican 
party, with which it was known that the sec- 
retary of state was in sympathy and affiliation. 

Genet at length, after much delay, made his 
slow progress northward, and arriving at Phila- 
delphia, received something of an ovation from 
the admiring and exultant citizens who sym- 
pathized in his mission, and who seemed to find 
little to condemn in his unparalleled and auda- 
cious conduct toward the national government. 
He was honored with a civic banquet in that 
city, on which occasion the guests, with wild 
enthusiasm, sang the '' Marseillaise," wore tho 
red liberty cap of French republicanism, and 
greeted each other by the revolutionary title of 
" citizen." 

Mr. Jefferson, however, had too much sagac- 
ity to commit himself to such a policy, or to 
justify the proceedings of the new minister. 
His letters in remonstrance against M. Genet's 
conduct were distinct and emphatic enough to 
protect their author from the charge of com- 
plicity in the seditious and mischievous proceed- 
ings of the French emissary. But the acute 
reader could read between the lines that the 



96 JOHN MARSHALL. 

American secretary of state was not devoid of 
sympathy witli the wishes and policy of France, 
though irritated and indignant at the conduct 
of the French envoy. From the beginning of 
his mission this messenger of discord suffered 
scarcely a day to pass without some new act of 
aggression, some fresh breach of international 
law, culminating at length in the arrogance of 
threatening President Washington, that he, for- 
eigner as he w^as, himself would publicly appeal 
from the President to the American people, 
and would respect the expressions and doings 
of the executive only when the representa- 
tives of the people should have confirmed them. 
This outrage, and the utter and disgraceful vio- 
lation of the ordinary courtesies and rights of 
international intercourse by this French Cat- 
iline, induced Washington to demand his imme- 
diate recall. This demand was complied with, 
and thus the obnoxious intruder was banished 
from the country. The proclamation of neu- 
trality by Washington, in which Mr. Jefferson^ 
as a member of the cabinet, could not avoid 
concurring, speedily followed. 

It challenges our surprise, at this day, that a 
measure so obviously wise and right as this pro- 
clamation of neutrality, and so essential to the 
vindication of our national dignity and charac- 
ter, should have inflamed anew the opposition to 



RETURN TO THE BAR. 97 

the administration of Washington and increased 
the animosity of that party ; yet such was the 
case. In public meetings, in legislative pro- 
ceedings, and in popular discussions, the course 
of the administration was strongly condemned. 
It did not accord with Marshall's nature or 
sense of duty to stand by and tamely submit 
to such gross injustice to the President and to 
the country. Acting on what he believed to 
be just and right and in the best interests of 
the people, he gave to this and kindred meas- 
ures of Washington's cabinet his earnest and 
unwavering support, and readily united with 
his political friends in the call of a meeting of 
the citizens of Richmond to consider the state 
of affairs. Here he offered resolutions ap- 
proving the President's course, and advocated 
them in a speech of unusual ability. They 
were passed by a considerable majority. But 
his success on this occasion, honorable as it was 
to himself and gratifying to his friends, was 
purchased at the usual price of a more vehe- 
ment and unsparing hostility than ever on the 
part of his political opponents. Defeated by 
him in the argument, they now began to assail 
him with bitter personal reproaches, seeking to 
undermine his influence and public character 
by denouncing him as an aristocrat, attached 
to the British constitution and an enemy to 



98 JOHN MARSHALL. 

the republican form of government. These un- 
worthy assaults, however, did him little harm. 
In Richmond, where his purity of character 
and manner of life were so well known, the 
ungenerous attacks recoiled on their authors. 
It was of little use to tell those who knew 
him that he was a British aristocrat ; but the 
charges traveled, of course, far beyond the cir- 
cle of his neighbors. 

Nor were these feelings of jealousy mitigated 
by his fearless defense, soon after, of Jay's treaty 
with England, when that unpopular document 
came before the United States Senate for rati- 
fication. At a public meeting of its opponents, 
in the city of Richmond, over which the ven- 
erable Chancellor Wythe presided, resolutions 
were adopted denouncing it as insulting to the 
dignity, injurious to the interest, dangerous to 
the security, and repugnant to the Constitution 
of the United States. But at a subsequent 
meeting of the citizens Mr. Marshall offered 
resolutions of a contrary character and sup- 
ported them in an able speech. Besides the 
expediency of the treaty, its constitutionality 
also was assailed on the ground that, as the 
constitution bestowed on Congress the power 
to " regulate commerce," the executive could 
not have the right to negotiate a commercial 
treaty. Marshall addressed himself particU' 



RETURN TO THE BAR, 99 

larly to this position, and so completely over- 
turned it that it was never urged again in 
Virginia. 

This argument brought Mr. Marshall great 
reputation, and first made his name familiar 
throughout the country as an expounder of the 
constitutional powers of the government. Visit- 
ing Philadelphia, a few months after, to argue 
the British debt case on appeal to the supreme 
court, he became an object of marked at- 
tention. 

" I then became acquainted," he says, in a letter to 
a friend, " with Mr. Cabot, Mr. Ames, Mr. Dexter, 
and Mr. Sedgwick, of Massachusetts, Mr. Wadsworth, 
of Connecticut, and Mr. King, of New York. I was 
dehghted with these gentlemen. The particular sub- 
ject [the British treaty] which introduced me to their 
notice was, at that time, so interesting, and a Vir- 
ginian with any sort of reputation who supported 
the measures of government was such a rara avis, 
that I was received by them all with a degree of 
kindness which I had not anticipated. I was par- 
ticularly intimate with Mr. Ames, and could scarcely 
gain credit with him, when I assured him that the 
appropriations [to carry out the treaty] would be 
seriously opposed in Congress." ^ 

In the spring of 1795, when it became ap- 
parent that all these questions would come 

. ^ Story's Discourse, p. 40. 



L .f C. 



100 JOHN MARSHALL. 

up for consideration in the state legislature, 
and that General Washington's administration 
would be severely assailed by an unrelenting 
opposition, Mr. Marshall's friends, anxious to 
avail themselves of his great services in that 
crisis, again forced him into a seat in the Gen- 
eral Assembly. The circumstances were pecul- 
iar and very flattering to him. Party spirit 
ran high, and so close was the division that it 
seemed doubtful whether the regular candidate 
of the Federalists, an intimate personal friend 
of Mr. Marshall, could be elected. Accordingly 
a poll was opened for Marshall on the very day 
of election, while he was engaged in one of the 
courts, and notwithstanding his resistance and 
his declaration that his feelings and honor were 
alike engaged for his friend, he was chosen. 



CHAPTER VII. 

THE FRENCH MISSION. 
1797-1798. 

John Adams succeeded Washington in the 
presidency in 1797, and on May 31 of that 
year nominated as envoys extraordinary and 
ministers plenipotentiary to France, Charles 
Cotes worth Pinckney, John Marshall, and 
Francis Dana. The last named declined the 
appointment, and Elbridge Gerry took his 
place. 

Marshall accepted this mission with reluc- 
tance, but the exigency of affairs was such that 
he did not feel at liberty to decline it. Hav- 
ing arranged his business at home with dis- 
patch, he was ready to embark in July of the 
same year. On leaving Richmond for Phila- 
delphia, he was attended for several miles on 
his journey by a large cavalcade of his fellow- 
citizens. However assailed he might be by po- 
litical opponents, these sentiments of personal 
respect and affection were never wanting on 
the part of the people. He embarked at Phil- 



102 JOHN MARSHALL. 

adelphia for Amsterdam on the 17th of July. 
President Adams, in a letter to Gerry at that 
time, says of him. : " He is a plain man, very 
sensible, cautious, guarded, and learned in the 
law of nations. I think you will be pleased 
with him." 

The ratification of Jay's treaty of amity, 
commerce, and navigation between the United 
States and England had been highly offensive 
to France, not because it contained provisions 
which were particularly obnoxious to her, but 
because our ancient ally expected the United 
States to make no treaty with her enemy. In- 
deed the exasperation at Paris might well have 
led to immediate war between the two coun- 
tries, had not the Directory been preoccupied 
with European complications, and had they 
not also hoped that the opposition in Congress 
would be able to prevent the carrying out of 
the treaty provisions. But although actual war 
was thus for the time avoided, a series of hos- 
tile acts, both aggressive and retaliatory, was 
pursued by France, which inflicted much injury 
on our commerce, and the whole conduct of the 
French government toward the United States 
was markedby intolerable insolence. 

In October, 1796, the French government 
had issued orders directing the seizure of Brit- 
ish property and persons on board American 



THE FRENCH MISSION. 103 

vessels, thereby committing a clear violation of 
the treaty of 1778. But their excuse was that 
this had been abrogated by the ratification of 
Jay's treaty, and that the commerce of the 
United States became thereby the legitimate 
prey of French cruisers. The course of our 
resident minister to France, Mr. Monroe, was 
marked by such passive conduct under these 
provocations as to render him obnoxious to his 
own government, and he was accordingly re- 
called. This gave offense to the French party 
in the United States, and was also highly re- 
sented in France. Subsequently, when General 
C. C. Pinckney, of South Carolina, a gentleman 
of known ability and moderation, but of Fed- 
eralist proclivities, was sent over as Monroe's 
successor, the French government refused to 
receive him. He was denied the usual card of 
hospitality, and was even threatened with the 
surveillance of the Minister of Police. He 
repelled these insults with dignity, and with 
becoming firmness insisted on the protection of 
the law of nations due to him as the representa- 
tive of a foreign power. But instead of giving 
any proper satisfaction for these insults the 
French government followed them up in Jan- 
nary, 1797, by a written notice to Mr. Pinckney 
to quit the French territory. He retired to 
Amsterdam, and there awaited further instruc- 
tions from his own government. 



i04 JOHN MARSHALL. 

When news of these outrages reached the 
United States, it occasioned great popular in- 
dignation. President Adams convened Con- 
gress in extra session on the 15th of May fol- 
lowing. In the President's speech to Congress 
he enlarged with patriotic indignation on the 
enormity of these proceedings on the part of 
the French government, and urged prompt 
measures of redress, and that preparation should 
be made for hostilities apparently so imminent 
between the two countries. Yet with admirable 
prudence, he kept open a door for the renewal 
of diplomatic relations. In response to his mes- 
sage, Congress took some measures to put the 
country in a state of defense. The Navy De- 
partment wa? created at this period, and addi- 
tions were made to our war marine. The Pres- 
ident was empowered to raise a provisional 
army, and the armed vessels of the United 
States were authorized to capture and bring 
into port all French vessels committing out- 
rages on American ships or citizens. Wash- 
ington was again appointed commander-in- 
chief, with the rank of lieutenant general, and 
other military preparations were pushed for- 
ward with great energy. In the mean time the 
American Congress acted with commendable 
dignity and wisdom, authorizing the Presi- 
dent, in the interests of peace, to institute a 



• 

I 



THE FRENCH MISSION. 105 

special mission to France, to demand redress 
and reparation for the injuries complained of. 
It was in pursuance of tliis policy that Marshall 
and his colleagues were nominated. 

These circumstances invested this new mis- 
sion with a peculiarly important and interest- 
ing character, and its result was awaited with 
deep interest throughout the country. The 
issues of peace or war seemed suspended upon 
it, and although ultimately no disastrous conse- 
quences were actually realized by reason of its 
failure, its progress and development form one 
of the most curious and extraordinary chapters 
in the history of diplomacy. 

The American envoys arrived in Paris, Oc- 
tober 4, 1797. On the following day they in- 
formed the minister of foreign affairs of their 
arrival, and inquired when he would receive 
one of their secretaries with the official noti- 
fication of their credentials. Talleyrand ap- 
pointed the next day, when their letters of 
credence were presented and duly acknowl- 
edged. A few days later he informed them, 
through one of his secretaries, that the Direc- 
tory had called upon him for a report as to the 
posture of affairs with regard to the United 
States, that he was then engaged in preparing 
it, and that it would soon be finished, when he 
would further inform them. In reply to in- 



106 JOHN MARSHALL. 

quiries, lie said that the usual cards of hospi 
tality would be sent to them, which were 
accordingly received the next day, addressed 
suitably to them in their official character. 
Thus far, everything denoted a friendly official 
reception, and the prompt opening of negotia- 
tions. But in less than ten days afterwards 
General Pinckney was informed by the clerk 
of the American consulate at Paris that he had 
learned, through one of Talleyrand's confiden- 
tial secretaries, that the Directory were highly 
incensed at the language and tone of the Presi- 
dent's speech to Congress, and that they would 
expect and require satisfactory explanations be- 
fore the envoys could have a public audience ; 
but that, meantime, certain persons might be 
appointed who would confer with them, and 
would report to Talleyrand, who had sole 
charge of the negotiations. 

A few days later, General Pinckney was 
waited upon by M. Hottinguer, who was rep- 
resented to him as a gentleman of credit and 
reputation, and who came with a message from 
M. Talleyrand. He began by saying that the 
French minister had a great regard for the 
United States, and was very desirous that there 
Bhould be a friendly adjustment of all matters 
of difference between the two countries. He 
Baid that he was ready, if it was deemed 



THE FRENCH MISSION. 107 

proper, to suggest a {)lan, which Talleyrand ex- 
pected would answer that purpose. On Gen- 
eral Pinckney's encouraging him to proceed, 
and saying that he was ready to hear, M. Hot- 
tinguer continued that the Directory, particu- 
larly two of them, were very much exasperated 
at some parts of President Adams's speech, and 
that they desired that these should be softened ; 
that this would be necessary before the envoys 
could be received ; that besides this, a sum of 
money would be required for the use of the 
Directory, which would be at the disposal of 
M. Talleyrand, and that a loan to France from 
the United States would also be expected and 
insisted upon. M. Hottinguer added that, when 
these terms were complied with, he had no 
doubt that the envoys would promptly be 
received and all differences satisfactorily ar- 
ranged. The particular passages of the Presi- 
dent's speech which were so obnoxious to the 
Directory, he could not specify, neither the 
amount of the loan needed, but the tribute for 
the Directory had been fixed at twelve hundred 
thousand livres, about fifty thousand pounds 
sterling, equivalent to two hundred and fifty 
thousand dollars in coin. To this General 
Pinckney replied that he would inform his col- 
leagues of what had been proposed, and confer 
with them as to their answer, and the inter- 



108 JOHN MARSHALL, 

vie w terminated. In their conference the three 
envoys agreed that General Pinckney should 
request Hottinguer to make his propositions in 
writing, in order to avoid misapprehension. 
Accordingly at the next interview that gentle- 
man brought with him and left with the envoys 
certain written propositions. He had, however, 
previously informed Mr. Pinckney that his com- 
munication was not directly from M. Talley- 
rand, but through another agent in whom Tal- 
leyrand had great confidence. 

On October 20, M. Hottinguer further in- 
formed them that M. Bellamy of Hamburg, 
in the confidence of M. Talleyrand, would call 
upon them and make all needful explanations. 
Bellamy came accordingly, and after dwelling 
on the favorable sentiments entertained by 
M. Talleyrand toward the United States, an- 
nounced that minister's desire to aid the envoys 
in their negotiations by his friendly mediation 
with the Directory ; but said that, in conse- 
quence of the displeasure of that body with 
the President's speech, the Directory had not 
received or acknowledged them in their repre- 
sentative character, and would not, as yet, au- 
thorize M. Talleyrand to hold any communica- 
tions with them ; that on this account M. 
Talleyrand himself could not see them, but 
authorized M. Bellamy to make certain propo- 



THE FRENCH MISSION. 109 

sitions to them and report their reply. He 
added that he held no diplomatic character, and 
was simply a friend of Talleyrand, enjoying 
his confidence and wishing to serve him. He 
designated certain parts of the President's 
speech as exceptionable, and submitted written 
propositions as to the proposed treaty. Among 
these were certain preliminary disavowals and 
explanations which would be expected, and an 
article providing that France should be placed 
in every respect upon the same footing which 
England occupied under Jay's treaty ; there 
was also a secret clause to the effect that the 
United States should make a loan to France. 

Recurring again to the necessity of removing 
the dissatisfaction arising from the President's 
speech, as a preliminary to any negotiation, M. 
Bellamy said : " Gentlemen, I will not disguise 
from you that, this satisfaction being made, the 
essential part of the treaty remains to be ad- 
justed. 11 faut de V argent, II faut heaucoup 
d'argenV^ (It is necessary to pay money, — to 
pay a great deal of money.) 

In a succeeding interview, on the next day, 
M. Bellamy informed the envoys that he had 
just been with M. Talleyrand. He said that 
they were both sensible of the pain the envoys 
must feel in making the required disavowal as 
to the President's speech, but that this was an 



110 JOHN MARSHALL. 

indispensable prerequisite to an official recog- 
nition, unless means could be found of chang- 
ing tlie mind of the Directory ; that he had no 
authority to suggest these means, but that, as 
a private citizen, he could express the opinion 
that with money this change of feeling might 
be effected. He specified the sum which lie 
believed would be accepted, and suggested a 
convenient mode of raising it. He said that 
there were thirty -two millions of Dutch re- 
script ions, worth ten shillings in the pound, 
which might be assigned to the United States 
at twenty shillings in the pound. That by the 
hypothecation of these securities of the Dutch 
government, the money could be raised to meet 
the urgent needs of the French government, 
and that the securities would certainly be paid 
in full by the former, at their par value, after 
the war, so that the United States would ul- 
timately lose nothing by the financial operation 
proposed. He was asked if the douceur or trib- 
ute to the Directory was to be added to this 
sum, and he answered in the affirmative. In 
reply, the ambassadors informed him that while 
their powers were full and ample to negotiate 
a treaty with France, they were not authorized 
to make a loan ; that if that was deemed a sine 
qua non to concluding negotiations, one of their 
number could return to the United States foi 



THE FRENCH MISSION. Ill 

fresh instructions ; and that, if their govern- 
ment should accede to the proposed loan, they 
could proceed on that basis ; that meantime the 
two other envoys, remaining in France, could 
negotiate concerning other questions ; but that 
in this interval there must be an entire suspen- 
sion of all hostile orders affecting the commerce, 
the persons, or the property of the United 
States, and of all pending proceedings in re- 
spect to captures or seizures already made. 

With these propositions M. Bellamy was evi- 
dently dissatisfied, saying that they demanded 
concessions from France at the very moment 
when she, the offended party, was claiming re- 
dress for grievances and injuries received, and 
that they treated the proposition for a loan as 
if it came from the Directory, when in fact it 
did not have even the authority of M. Talley- 
rand, and was only a suggestion from himself, 
a private citizen, which they might adopt and 
use as a substitute for the painful embarrass- 
ment demanded of them in a disavowal of the 
President's obnoxious speech. 

The envoys replied that they understood the 
matter perfectly ; that while the propositions 
of a loan, etc., were in form to come from 
them, they had proceeded in fact from the 
Directory or from their minister, the secretary 
of foreign relations. M. Bellamy affected great 



112 JOEN MARSHALL. 

concern that the envoys had put from them 
the only practicable mode of opening the door 
to full negotiations, saying that the Directory 
would certainly insist on their terms. The en- 
voys replied that the Directory must take the 
course which they thought compatible with 
their duty, while they, on their part, would 
carefully guard the interests and the honor of 
their own country. They added that the idea of 
their apologizing for or disavowing the Presi- 
dent's speech could not be considered in a seri- 
ous light ; that such a proceeding would render 
them ridiculous in the eyes of their own govern- 
ment and of all mankind. 

The envoys, in permitting this informal inter- 
course to go so far, had doubtless been influ- 
enced by a strong desire to preserve amicable 
relations with our ancient ally, and to learn 
with certainty how far the Directory and Tal- 
leyrand were personally and officially impli- 
cated in the disgraceful proceeding. Pending 
these irregular conferences, namely, on the 27th 
of October, news was received at Paris of the 
signing of definitive terms of peace between 
Austria and France. This seemed to give fresh 
impulse to the desire of the French emissaries 
to hasten results with the American envoys. 
Accordingly another visit was made to them by 
M. Hottinguer. He now complained that they 



THE FRENCH MISSION, 113 

had not been heard from, and said that the gov- 
ernment expected to receive propositions from 
them ; that the Directory was becoming very- 
impatient, and would take very decided steps if 
the offensive features of the President's speech 
were not explained or softened. He alluded to 
the peace just concluded, and said that it ought 
*' to produce a change in the attitude of the 
envoys; that France had determined to take 
higher grounds with the United States and all 
other neutral nations, which must aid France or 
be treated as enemies." The American envoys 
replied that they had considered the whole as- 
pect of the case very fully, and that the recent 
peace would effect no change in their attitude. 
M. Hottinguer, after enlarging on the now aug- 
mented power and resources of France, re- 
turned again to the subject of money. He said : 
" Gentlemen, you do not speak to the point. It 
is money. It is expected that you will offer 
money." They replied that they had already 
answered explicitly on that point. "No," said 
he, " you have not. What is your answer?" 
They replied : '' It is No. No ; not a sixpence^ 
The conversation continued some time, during 
which the private advance of money and the 
public loan were pressed in a variety of forms. 
M. Hottinguer, in conclusion, said that he would 
communicate as nearly as he could the sub- 



114 JOHN MARSHALL. 

stance of what had passed, either to M. Bel- 
lamy or to the minister. 

Up to this time the envoys had had no per- 
sonal interview with M. Talleyrand. They had 
only seen him once, and that for a short time. 
They did not doubt, however, that these medi- 
aries from him, with whom they had conferred, 
were his agents, sent by him to effect by in- 
direction and false representations objects in 
gaining which he did not like to appear di- 
rectly. These suspicions were soon fully veri- 
fied. M. Talleyrand furnished conclusive evi- 
dence that these terms, so persistently urged by 
his unofficial agents, did really proceed from 
himself. 

Later in October another messenger, still un- 
official, from M. Talleyrand, appeared on the 
stage, a M. Hautval, said to be a French gen- 
tleman of respectable character, for they were 
"all honorable men." Hautval called on Mr. 
Gerry, and informed him that M. Talleyrand 
had expected to see the American envoys fre- 
quently in private intercourse, and to confer 
with them individually as to their mission, and 
that he had been authorized to make this known 
to them. On Mr. Gerry informing his col- 
leagues of this message, Messrs. Pinckney and 
Marshall said that, as they were not acquainted 
with M. Talleyrand, they could not see the pro- 



THE FRENCH MISSION. 115 

priety of their calling on liim ; but Mr. Gerry, 
having formed an acquaintance with him in the 
United States, might properly be expected, ac- 
cording to the custom in France, to call upon 
him. A few days afterward Mr. Gerry, in com- 
pany with M. Hautval, did call upon M. Talley- 
rand. M. Talleyrand began the conversation. 
He said that the Directory had passed an arrets 
in which they renewed their demand for an ex- 
planation of the President's speech, etc., hut^ on 
their offering money^ he thought that he could 
prevent the effect of the arret. Mr. Gerry in- 
formed the minister that they were not au- 
thorized to offer money. In that case, M. 
Talleyrand replied, they could take the power 
to do so, and he proposed that they should take 
this step. Mr. Gerry, continuing to allege 
the want of power, repeated what had been 
said in previous conferences, that one of his 
colleagues might return to America for instruc- 
tions on that head provided the other objects of 
their negotiations could, in the mean time, be 
considered. Mr. Gerry then expressed a wish 
that M. Talleyrand would confer with his col- 
leagues. M. Talleyrand replied that he should 
be happy to confer with the envoys individually, 
but " that this matter about the money must he 
settled directly without sending to America ; " 
that he would not communicate the arret for a 



116 JOHN MARSHALL. 

week ; and that if they could adjust the diffiv 
culty as to the speech, an application would be 
sent to the United States for the loan. Two 
conclusions are manifest from this statement 
by M. Talleyrand. First, that he was perfectly 
aware that his agents had proposed and insisted 
on the payment of money .^ as a hrihe^ into his own 
hands, as a condition precedent to opening for- 
mal negotiations, — the same conclusion is also 
to be drawn from his opening statement, to 
wit, that their offering money would have the 
effect of suspending the arret. Second, that 
the smaller sum named, to wit, the douceur of 
two hundred and fifty thousand dollars, must 
be advanced in cash, "directly" and "before 
sending to America," a transaction which doubt- 
less he knew well that the financial credit of 
the envoys could accomplish. 

In another visit, after Mr. Gerry's interview 
with Talleyrand, Messrs. Hottinguer and Bel- 
lamy announced to the envoys that, "if the 
terms already offered to them should be re 
jected, and war should ensue, the fate of Venice 
might befall the United States." " Perhaps," 
said M. Bellamy, " you believe that, in return- 
ing and exposing to your countrymen the un- 
reasonableness of the demands of this govern- 
ment, you will unite them in their resistance to 
those demands. You are mistaken. You ought 



THE FRENCH MISSION. 117 

to know that the diplomatic skill of France and 
the means she possesses in your country are 
sufficient to enable her, with the aid of the 
French party in America, to throw the blame 
which will attend the rupture of the negotia- 
tions on the ' Federalists,' as you term your- 
selves, but on the ' British party,' as France 
terms you ; and you may assure yourselves that 
this will be done." ^ 

Such haughty insolence produced its natural 
effect. It induced the envoys to do at length 
what they would have been well justified in 
doing sooner, — declining to hold further in- 
direct intercourse with a government which 
had shown itself so destitute of truth, and so 
incapable of acting with openness and honor. 
They accordingly announced this determination 
to M. Tallej^rand. Yet in spite of it other 
attempts were frequently made to draw them 
into the like irregular and unofficial intercourse, 
but fortunately altogether without effect. 

One of the methods resorted to for compass- 
ing this object was singular enough. One 
Beaumarchais, a very wealthy French citizen 
residing in Paris, was a client of Mr. Marshall, 
whose professional services he had secured in 
the prosecution of a claim which Beaumarchais 
asserted against the State of Virginia for re- 

* Waite's American State Papers, vol. iii. p. 214. 



118 JOHN MARSHALL. 

covery of the large sum of a hundred and forty- 
five thousand pounds sterling, alleged to be due 
for military supplies furnished to that State 
during the Revolutionary War. Beaumarchais 
had obtained a judgment for the amount in the 
lower court, but from this judgment an appeal 
had been taken to a higher court, and the final 
result was yet undetermined. He had called 
on Mr. Marshall, and had entertained him and 
his colleagues at dinner. Beaumarchais was a 
large capitalist and an intriguer of great clever- 
ness. M. Bellamy saw in these circumstances 
a gleam of hope for raising the much-coveted 
douceur^ which, as M. Talleyrand's agent, he 
was bent upon securing. He had little difii- 
culty in bringing M. Beaumarchais into his 
views, and on the 17th of December M. Bel- 
lamy informed Marshall that Beaumarchais had 
consented, provided his claim should be admit- 
ted, to sacrifice fifty thousand pounds sterling 
of it as the douceur so often demanded; so that 
the payment of that sum could not work any 
loss to the American government. This prop- 
osition was not entertained, the envoys regard- 
ing it as an attempt to renew the unofi&cial 
negotiations. Mr. Marshall makes the follow- 
ing allusion to it in his journal : — 

" Having been originally the counsel of M. de 
Beaumarchais I had determined, and so I had in* 



\ 



THE FRENCH MISSION. 119 

formed General Pinckney, that I would not, by my 
voice, establish any agreement in his favor, but that 
I would positively oppose any admission of the claim 
of any French citizen if not accompanied with an 
admission of the claims of American citizens for 
property captured and condemned for want of a role 
d'equipageJ" ^ 

Mr. Gerry's intercourse with these messen- 
gers of Talleyrand seems to have been more 
frequent and intimate than that of his col- 
leagues. There was one on the 17th of De- 
cember, in the presence of M. Bellamy, in 
which Mr. Gerry said to M. Talleyrand that 
M. Bellamy had informed him of some prop- 
ositions coming from him, Talleyrand, refer- 
ring to the gratuity of X 50,000 and the pur- 
chase of the Dutch rescriptions, to which he 
could give no reply, etc. M. Talleyrand said 
that what M. Bellamy had told him was true ; 
that Bellamy could always be depended upon ; 
that he would put his proposals in writing. 
This he accordingly did, but after he had shown 
them to Mr. Gerry he destroyed the paper. 
These proposals referred to the purchase of the 
Dutch securities, but did not allude to the 
gratuity. That was doubtless to be the special 
work of his agents. 

1 This debt to Beaumarchais was incurred by the State of 
Virginia during the war of the Revolution, in the purchase of 
supplies for the continental army, and was afterward assumed 
and paid in full by the United States government. 



120 JOHN MARSHALL. 

The envoys now resolved that they would 
address M. Talleyrand by letter, and lay before 
him in that explicit form the special objects 
of their mission, discussing the points at issue 
between the two governments just as if they 
had been officially received ; also, that on the 
refusal or failure of the French government to 
open negotiations with them, they would de- 
mand their passports and return to the United 
States. This letter, prepared by Marshall, was 
a full and clear statement of the whole subject, 
and has ever been regarded as a model state 
paper.i Before sending it, however, the three 
thought it wise to request a personal interview 
with Talleyrand. He readily assented and ap- 
pointed a day to receive them. On this occa- 
sion he said in substance to the envoys, that 
the Directory would require some proof, on 
the part of the United States government, of 
a friendly disposition towards France, prepara- 
tory to opening negotiations, and alluded very 
plainly to a loan as furnishing that proof. 
They replied by repeating that they had no 
power to make a loan, and that such an act 
would be inconsistent with the neutrality of 
the United States, and might involve them in 
a war with Great Britain. Talleyrand urged 
that foreign ministers must often, in their dJ^- 

1 Waite's State Papers, vol. iii. p. 219. 



THE FRENCH MISSION. 121 

cretion, assume responsibility for tlie sake of 
the public good ; that the loan could be so dis- 
guised as to prevent any violation of their 
neutral obligations to England ; and that if 
they really desired to conciliate France and ac- 
complish the object of their mission, they would 
have no difficulty in finding the means to do so. 
He added, by way of complaint, that the en- 
voys had not visited him as he expected, and 
that, although the Directory had not given them 
an official audience, there was no reason why 
they might not have seen him often and found 
opportunity in personal interviews to remove 
all difficulties in the way of their mutual inter- 
course. Mr. Marshall replied with dignity that 
it was not a matter of the least concern to 
them whether they had an interview with the 
Directory or not ; that they were perfectly in- 
different in that matter; that they had expected 
and demanded that their official character 
should be acknowledged, and that they would 
not undertake to act in that character until 
they should have been so recognized. Mr. 
Marshall further said that to lend or to raise 
money for France to enable her to carry on the 
war then waging with England would be giv- 
ing aid to her and taking part in the war, and 
that their doing so without special authority 
was out of the question. 



122 JOHN MARSHALL. 

After an interval of a fortniglit M. Talley- 
rand transmitted his answer to the above-men* 
tioned letter of the envoys, in which, after a 
heedless repetition of what he had previously 
said, he proceeded : ^' The Executive Director/ 
is disposed to treat with that one of the three 
whose opinions are presumed to be more impar- 
tial, and to promise in the course of the expla- 
nations more of that reciprocal confidence which 
is indispensable." This was intended to desig- 
nate Mr. Gerry, who was supposed to be mere 
favorable to the loan to France than his col- 
leagues. To this it was replied by Mr. Marshall 
that the powers of the envoys were joint ; that 
no one of them could conclude negotiations in 
which it was intended that all should partici- 
pate ; nor could the other two decline duties 
which were thus plainly conferred upon them 
all by their government. They concluded by 
demanding passports for the whole or any num- 
ber of them, which should be accompanied with 
letters of safe conduct. 

It was no doubt intended and desired by M. 
Talleyrand that Messrs. Marshall and Pinck- 
ney should voluntarily retire, on receipt of this 
letter making the invidious distinction between 
them and Mr. Gerry. For, in a letter to ]\Ir. 
Gerry, dated April 3, he wrote: "I suppose, 
sir, that Messrs. Pinckney and Marshall have 



THE FRENCH MISSION. 123 

thought it useful and proper, in consequence of 
the intimations which the end of my note of 
the 18th of March last presents, to quit the ter- 
ritory of the Republic." As the envoys, how- 
ever, had previously demanded their passports, 
this inhospitality was merely a gratuitous in- 
dignity, showing evidently a wish for their de- 
parture, but an unwillingness to take the re- 
sponsibility of helping them away. They, upon 
their part, seeing that a proper self-respect and 
due regard for the honor and dignity of their 
country forbade them to remain longer, were 
indeed anxious to return to the United States ; 
but they were resolved not to sneak away, as 
Talleyrand ventured to suppose that they had 
done, but to demand the official exequatur and 
the protection of the usual safeguards against 
capture, to which, by the custom of nations, 
they were entitled. Marshall told Talleyrand 
that the conduct of the French government was 
in violation of the laws and customs of civilized 
nations observed toward foreign nations. He 
I replied that Marshall was not a foreign minister 
\ but only an Amercan citizen, who must obtain 
his passports, like all others, through the Anier- 
( ican consul. Mr. Marshall repelled this false 
1 and offensive assertion, remarking sarcastically 
\ that Talleyrand's ignorance of the laws of na- 
tions could alone excuse a statement so desti- 



124 JOHN MARSHALL. 

tute of foundation ; he said that he derived hia 
character as foreign minister not from M. Tal- 
leyrand or the French government, but from 
the United States, which had conferred it upon 
him ; that though the Directory might refuse 
to treat with him and his colleagues, still they 
held their public position independently of 
France, and were entitled to leave like other 
ministers with their passports and letters of 
safe conduct. To this Talleyrand made the im- 
pertinent reply that if Marshall wanted a pass- 
port he must send in his name, stature, age, and 
complexion to the American consul, who would 
obtain one for him ; and that, as to a safe con- 
duct, it was unnecessary, as he would incur no 
risk from French cruisers.^ 

Though thus treated with studied rudeness, 
Pinckney and Marshall persisted in their de- 
mand, and the passports were at last sent to 
them. Marshall left Paris on the 12th of April, 
but Mr. Pinckney, with some difficulty, ob- 
tained permission from the French government, 
in consequence of the ill-health of his daughter, 
who had accompanied him to France, to remain 
longer. As to Mr. Gerry, who, as Talleyrand 
said, had "manifested himself more disposed 
to lend a favorable ear to everything which 
might reconcile the two republics," he was in» 

' Marshall's J^OMrna/. American State Papers, vol. iii. p. 394 



i 



THE FRENCH MISSION. 125 

duced by threats of immediate war by France 
against the United States to remain in Paris. 
It was said that, although warmly urged to 
enter into negotiations with the Directory aftei 
his colleagues left, he refused to do so. His 
conduct, however, provoked severe criticism at 
home and lowered his character with his coun- 
trymen, though he was generally accredited 
with fair intentions. 

The dispatches of the envoys to their gov- 
ernment reported fully what had occurred in 
their attempt to execute their mission. These 
were now communicated in a message to Con- 
gress from the President, were published in 
full in the newspapers of the day, and were 
thence transferred into the English papers. 
They reached France, in due time, and created 
a profound sensation. Talleyrand took early 

' measures to forestall their effect, and hastened 
to disavow the shameful part which the sim- 
ple recital of the facts assigned to him in the 
transaction. In the publication of the official 
papers the American secretary of state had 
used the initials X. Y. Z. for the names of 

i Messrs. Hottinguer, Bellamy, and Hautval, as 
they had requested the envoys not to make 
public their real names. This circumstance 
enabled the wily French secretary to resort to 
the trick of affecting entire ignorance of the 



126 JOHN MARSHALL. 

persons thus referred to, whom he designated 
as " intriguers," who had deceived the envoys. 
He even had the audacity to inquire by letter 
of Mr. Gerry, still in Paris, as to these per- 
sons, and requested to be furnished with their 
names ! 

"I cannot observe without surprise," he said, 
" that intriguers have profited by the insulated 
condition in which the envoys of the United 
States have kept themselves, to make proposals 
and hold conversations, the object of which was 
evidently to deceive you." This to Mr. Gerry, 
to whom Talleyrand had given the distinct as- 
surance that "what M. Bellamy had said to 
him, as coming from him (Talleyrand), was 
true, and that he might always be relied upon ; " 
to Mr. Gerry, who had heard the proposals 
which had been made by these agents substan- 
tially renewed by the minister himself, and who 
was present when General Pinckney told Tal- 
leyrand that his suggestions were considered by 
the envoys as substantially the same as those 
made by Messrs. Hottinguer and Bellamy, the 
men whom he now styled officious intriguers, 
but whose statements he had not denied or dis- 
avowed at that time ! M. Talleyrand further 
published in the "Redacteur," the ofiicial ga- 
zette, a labored defense and reply to these dis- 
patches, characterized by true Machiavellian 



TEE FRENCH MISSION. 127 

dissimulation and unscrupulous mendacity, 
which, it is not necessary here to repeat. 

Mr. Marshall arrived in New York on the 
17th of June, after a long voyage. This inter- 
val had afforded time for the American public 
to read the published dispatches of our envoys 
and acquaint themselves with the history of a 
mission so extraordinary and so disgraceful to 
France. He found an intense indignation pre- 
vailing throughout the country, and he was 
received with warm enthusiasm wherever he 
appeared. All parties and classes united in 
cordial approbation of the dignity, ability, and 
manly spirit he had displayed throughout the 
mission. 

The history of these events, so soon as known, 
had naturally augmented the strength of the 
Federalists and weakened the Republicans. Mr. 
Jefferson viewed this state of things with great 
jealousy. He was perhaps the only prominent 
public character in the country who remarked 
with discontent the honors accorded to Marshall 
as one who had conducted himself, in such a 
trying ordeal, with admirable wisdom and firm- 
ness, and who certainly deserved the grateful 
plaudits of his countrymen. In a letter written 
at this crisis to Mr. Madison, Mr. Jefferson, 
after mentioning the arrival of Marshall at New 
York, says : — 



128 JOHN MARSHALL. 

" I have postponed my own departure from Phil- 
adelphia in order to see if that circumstance would 
produce any new projects. No doubt he [Marshall] 
there received more than hints from Hamilton as to 
the ';one required to be assumed ; yet I apprehend he 
is not hot enough for his friends. Livingston came 
with him from New York. Marshall told him they 
had no idea in France of a war with us ; that Talley- 
rand sent passports to him and Pinckney, but none to 
Gerry ; upon this Gerry stayed, without explaining 
to them the reason. He wrote, however, to the Pres- 
ident by Marshall, who knew nothing of the contents 
of the letter, so that there must have been a previ- 
ous understanding between Talleyrand and Gerry. ^ 
Marshall was received here [Philadelphia] with the 
utmost eclat. The secretary of state and many car- 
riages, with all the city cavalry, went to Frankford 
to meet him, and on his arrival here, in the evening, 
the bells rung till late in the night, and immense 
crowds were collected to see and make part of the 
show, which was circuitously paraded through the 
streets before he was set down at the city tavern." 
"All this," Jefferson proceeds, " was to secure him to 
their views, that he might say nothing which would 
oppose the game they had been playing. Since his 
1 Mr. Flanders says, in his Lives of the Chief Justices, vol. 
ii. p. 382 : "Marshall could not have told Livingston this, be- 
cause Gerry had agreed with Talleyrand to remain, had 
told his colleagues that he intended to remain, and this, too, 
before the passports Avere sent. His not receiving a passport 
had nothing to do with his staying. It would have been sent^ 
had he demanded it." 



THE FRENCH MISSION. 129 

arrival I can liear nothing directly from him, while 
they are disseminating through the town things as 
from him diametrically op^josite to what he said to 
Livingston."^ 

A public dinner was given to Marshall by 
members of both houses of Congress, then in 
session, " as an evidence of affection for his per- 
son, and of their grateful approbation of the 
patriotic firmness with which he sustained the 
dignity of his country during his important 
mission." 

It was at this dinner, and by way of indig- 
nant rebuke of the infamous invitation by Tal- 
leyrand to our envoys to resort to a bribe in 
order to obtain a hearing by the French gov- 
ernment, that the sentiment, so happily ex- 
pressed, was offered and cordially welcomed: 
^'•Millions for defense^ hut not a cent for tribute,'^ 
a sentiment so entirely in unison with the pul- 
sations of every patriotic heart that it was 
eagerly caught up and quickly wafted through 
the length and breadth of the land with every 
demonstration of popular enthusiasm. 

On his return to Virginia Marshall was not 
less warmly welcomed by all parties. He im- 
mediately resumed his law practice, which was 
always his most congenial employment, and 
from which he hoped now to be no more with- 

1 Jefferson's Works, vol. iv. p. 249. 



130 JOHN MARSHALL. 

drawn. But it was obvious that the time for 
that coveted retirement from public life was 
not yet come. Little as he desired it, he was 
to be remanded to the political arena by in- 
fluences to which he was constrained to yield. 



CHAPTER VIII. 

IN CONGRESS. 

1799-1801. 

How fully Marshall enjoyed the confidence of 
Washington, is proved by the facts that Wash- 
ington offered him a seat in the cabinet as 
attorney general, and also an important for- 
eign mission. Both these positions he had been 
obliged to decline. But the singularly respon- 
sible, difficult, and delicate task, which he had 
accepted upon the nomination of Mr. Adams, 
had been so well performed that further recog- 
nition of his ability was inevitable. In the sum- 
mer of 1798, a vacancy occurred on the bench 
of the Supreme Court of the United States, and 
Adams resolved to appoint Mr. Marshall to fill 
it. He wrote to his secretary of state, Mr. 
Pickering, who was disposed to prefer Bush- 
rod Washington, an eminent lawyer and a fa- 
vorite nephew of the ex-President : " General 
Marshall or Bushrod Washington will succeed 
Judge Wilson, if you have not some other gen- 
tleman to propose who, in your opinion, can 



132 JOHN MARSHALL. 

better promote the public honor and interest. 
Marshall is first in age, rank, and public ser- 
vices; probably not second in talents." In a 
subsequent letter to the secretary, he further 
said : — 

" The name, the connections, the character, the 
merit, and abilities of Mr. Washington are greatly 
respected, but I still think General Marshall ought 
to be preferred. Of the three envoys [to France] 
the conduct of Marshall alone has been entirely sat- 
isfactory and ought to be marked by the most decided 
approbation of the public. He has raised the Ameri- 
can people in their own esteem ; and if the influence 
of truth and justice, reason and argument, is not lost 
in Europe, he has raised the consideration of the 
United States in that quarter. He is older at the 
bar than Mr. Washington, and you and I know by 
experience that seniority at the bar is nearly as much 
regarded as it is in the army. If Mr. Marshall should 
decline, I should next think of Mr. Washington." ^ 

Insurmountable considerations, as Mr. Mar- 
shall wrote to the secretary of state, obliged 
him to decline this honor, and the appointment 
accordingly fell to Bushrod Washington, very 
fortunately, as it turned out, for Washington 
made an excellent judge and Marshall soon be- 
came chief justice. 

One of the chief reasons, doubtless the con* 

1 Adams's Works, vol. viii. p. 597. 



i 



IN CONGRESS. 133 

trolling one, wliicli at this period (Sept. 26, 
1798) induced Marshall to decline the office 
thus tendered him was, that he had been in- 
duced, much against his will, to become a can- 
didate for Congress. He had been invited to 
Mount Vernon, and there had been subjected 
to such earnest personal solicitation by General 
Washington that he had at last consented to 
accept a candidacy which he would have gladly 
shunned. 

" I learned with much pleasure," wrote WasJiing- 
ton to his nephew, Bushrod Washington, " from the 
postscript of your letter, of General Marshall's inten- 
tion to make me a visit. I wish it of all things, and 
it is from the ardent desire I have to see him that I 
have not delayed a moment to express it, lest, if he 
should have intended it on his way to Frederic, and 
[should] hear of my indisposition, he might change 
his route. I can add with sincerity and truth, that if 
you can make it comport with your business I should 
be exceedingly happy to see you along with him. The 
crisis is important. The temper of the people in this 
State, at least in some places, is so violent and out- 
rageous, that I wish to converse with General Mar- 
shall and yourself on the elections, which must come 
soon." ^ 

This visit to Mount Vernon, apart from all 
public considerations, seems to have afforded 

1 Washington's Writings, vol. xi. p. 292. 



134 JOHN MARSHALL, 

Washington great pleasure. Mr. Paulding has 
given us a pleasant memorial of it, with some 
amusing personal incidents. Washington some- 
times related the anecdote to this effect : — 

" They came on horseback, and for convenience or 
some other purpose had bestowed their wardrobes in 
the same pair of saddle-bags, each party occupying 
his side. On their arrival at Mount Vernon, wet to 
the skin by a shower of rain, they were shown into 
a chamber to change their garments. One unlocked 
his side of the bag, and the first thing he drew forth 
was a black bottle of whiskey. He insisted that this 
was his companion's repository, but on unlocking the 
other there was found a huge twist of tobacco, a few 
pieces of corn bread, and the complete equipment of 
a wagoner's pack-saddle ! They had exchanged sad- 
dle-bags with some travelers on the way, and finally 
made their appearance in borrowed clothes, that fitted 
them most ludicrously. The general was highly 
diverted, and amused himself with anticipating the 
dismay of the wagoner, when he discovered this over- 
sight of the men of law." ^ 

Notwithstanding the great popularity of Mr. 
Marshall and the eclat of his conduct in the 
recent French mission, his election to Congress 
was warmly opposed by the Democratic party, 
with Mr. Jefferson at its head, and the contest 
w^as a severe one. Party feeling was highly 

1 Paulding's Life of Washington, vol. ii. p. '.91. 



IN CONGRESS. 135 

inflamed, especially in Virginia. Marshall was 
severely arraigned as the advocate of a strong 
monarchical government, as a consolidationist, 
etc. One of the means used to defeat him was 
a report, industriously circulated in the district, 
that Patrick Henry, who belonged to the oppo- 
site political party, and whose name was a pillar 
of strength throughout the State, was opposed 
to his election. It is highly honorable to Col- 
onel Henry that, when informed of the use thus 
made of his name, he promptly addressed a 
letter to his friend Mr. Blair, of Richmond, 
in which he refuted the statement and thus 
spoke of General Marshall : — 

" General Marshall and his colleagues exhibited the 
American character as respectable. France in the 
period of her most triumphant fortune beheld them 
as unappalled. Her threats left them, as she found 
them, mild, temperate, firm. Can it be thought that, 
with these sentiments, I should utter anything tend- 
ing to prejudice General Marshall's election ? Very 
far from it indeed. Independently of the high grati- 
fication I felt from his public ministry, he ever stood 
high in my esteem as a private citizen. His temper 
and disposition were always pleasant. His talents 
and integrity unquestioned. These things are suffi- 
cient to place that gentleman far above any competi- 
tion in the district for Congress ; but when you add 
the particular information and insight which he has 
gained, and is able to communicate to our public coun- 



136 JOHN MARSHALL. 

cils, it is really astonishing that even blindness itself 
should hesitate in the choice. But it is to be ob- 
served that the efforts of France are to loosen the 
confidence of the people everywhere in the public 
functionaries, and to blacken characters most emi- 
nently distinguished for virtue, talents, and public 
confidence ; thus smoothing the way to conquest, or 
those claims of superiority as abhorrent to my mind 
as conquest, from whatever quarter they may come. 

" Tell Marshall I love him, because he felt and 
acted as a republican, as an American. The story 
of the Scotch merchants and old tories voting for him 
is too stale, childish, and foolish, and is a French 
Jinesse ; an appeal to prejudice, not to reason and 
good sense. As to the particular words stated by you 
and said to come from me, I do not recollect saying 
them, but certain I am, I never said anything deroga- 
tory to General Marshall ; but, on the contrary, I 
really should give him my vote for Congress, prefer- 
ably to any citizen in the State at this juncture, one 
only excepted, and that one is in another line." ^ 

From a political opponent, of very strong 
Democratic predilections, this was certainly a 
very handsome and a very unusual tribute. 

Another unfounded and ungenerous report 
was diligently propagated in the canvass, and 
was keenly felt by Mr. Marshall. He alludes 

1 This is supposed to be a reference to Washington, then 
just appointed general-in-chief of the army to be raised foi 
resisting the aggressions of France. 



IN CONGRESS. 137 

to it in a letter to General Washington, which, 
with the brief reply of the latter, we here in- 
sert : — 

" You may possibly have seen," says Marshall, " a 
paragraph in a late publication stating that several 
important offices in the gift of the executive, and 
among others that of secretary of state, had been ob- 
tainable by me. Few of the unpleasant occurrences 
produced by my declaration as a candidate for Con- 
gress, and they have been very abundant, have given 
me more real chagrin than this. To make a parade 
of proffered offices is a vanity which I trust I do not 
possess, but to boast of one never in my power would 
argue a littleness of mind at which I ought to blush. 
I know not how the author may have acquired his 
information, but I beg leave to assure you that he 
never received it directly nor indirectly from me. I 
had no previous knowledge that such a publication 
was designed, or I should certainly have suppressed 
so much of it as relates to this subject. The writer 
was unquestionably actuated by a wish to serve me, 
and by resentment at the various malignant calum- 
nies which have been so profusely bestowed on me. 
One of these was, that I only wished a seat in Con- 
gress for the purpose of obtaining some office, which 
my devotion to the administration might procure. 
To repel this was obviously the motive of the indis- 
creet publication I so much regret. A wish to res- 
cue myself in your opinion from the imputation of an 
idle vanity, which forms, if I know myself, no part of 



138 JOHN MARSHALL. 

my character, will, I trust, apologize for the trouble 
this explanation may give you." ^ 

It appears from the brief and gratifying let- 
ter of Washington in reply that Marshall's 
explanation was needless. 

" I am sorry to find," Washington wrote, " that 
the publication you allude to should have given you 
a moment's disquietude. I can assure you it made 
no impression on my mind of the tendency appre- 
hended by you." 

But in spite of the best efforts which Mar- 
shall's opponents could put forth, the Richmond 
district elected him. Though the majority was 
small, the result afforded high gratification to 
his friends. Washington wrote to his nephew, 
Bushrod Washington : " The election of Gen- 
eral Lee and Marshall is grateful to my feel- 
ings. I wish, however, both of them had been 
elected by greater majorities ; but they are 
elected, and that alone is pleasing. As the tide 
is turned I hope it will come in with a full 
flow, but this will not happen if there is any 
relaxation on the part of the Federalists." 

Congress convened in December, 1799, and 
Marshall took his seat in the House of Repre- 
sentatives, " a body," says Mr. Horace Binney, 
" perhaps never exceeded in the number of its 

1 Washington's Writings, vol. xi. p 424. 



IN CONGRESS. 139 

accomplished debaters, or in the spirit with 
which they contended for the prize of public 
approbation." ^ It was the last which convened 
in Philadelphia. 

In view of Washington's extreme solicitude 
to see Marshall in Congress, and of the great 
pleasure his election afforded to his illustrious 
chief and friend, it is affecting to reflect that 
one of the first duties he was called to perform 
was to announce in the House the death of 
that great man, — " the hero, the patriot, and 
the sage of America ; " an unexpected calam- 
ity, which plunged a whole country into the 
profoundest grief. A rumor of Washington's 
death had reached Philadelphia not long after 
the event occurred, but it was most earnestly 
hoped that it was unfounded. Later intelli- 
gence, however, dissipated this slender hope. 
On the next day, the 19th of December, "with 
i suppressed voice and deep emotion," Mr. Mar- 
shall addressed the chair, as follows : — 

" The melancholy event, which was yesterday an- 
nounced with doubt, has been rendered but too cer- 
tain. Our Washington is no more ! the hero, the 
patriot, the sage of America, the man on whom in 
times of danger every eye was turned and all hopes 
were placed, lives now only in his own great actions, 
and in the hearts of an affectionate and afflicted 
people. 

1 Binney's Eulogy on Marshall, p. 52. 



140 JOHN MARSHALL. 

" If, sir, it had even not been usual openly to tes- 
tify respect for the memory of those whom Heaven 
has selected as its instruments for dispensing good to 
man, yet, such has been the uncommon worth and 
such the extraordinary incidents which have marked 
the life of him whose loss we all deplore, that the 
whole American nation, impelled by the same feel- 
ings, would call, with one voice, for a public mani- 
festation of that sorrow which is so deep and so uni- 
versal. 

" More than any other individual, and as much as 
to one individual was possible, has he contributed to 
found this, our wide-spreading empire, and to give to 
the western world independence and freedom. 

" Having effected the great object for which he 
was placed at the head of our armies, we have seen 
him convert the sword into the ploughshare, and 
sink the soldier in the citizen. 

" When the debility of our federal system had be- 
come manifest, and the bonds which connected this 
vast continent were dissolving, we have seen him 
the chief of those patriots who formed for us a con- 
stitution which, by preserving the Union, will, I trust, 
substantiate and perpetuate those blessings which 
our Revolution had promised to bestow. 

" In obedience to the general voice of his country, 
calling him to preside over a great people, we have 
seen him once more quit the retirement he loved, and 
in a season more stormy and tempestuous than war 
itself, with calm and wise determination, pursue the 
great interests of the nation, and contribute, more 



IN CONGRESS. 141 

than any other could contribute, to the establishment 
of that system of policy which will, I trust, yet pre- 
serve our peace, our honor, and our independence. 

" Having been twice unanimously chosen the chief 
magistrate of a free people, we have seen him, at 
a time when his reelection with universal suffrage 
could not be doubted, afford to the world a rare in- 
stance of moderation, by withdrawing from his high 
station to the peaceful walks of private life. 

" However the public confidence may change and 
the public affection fluctuate with respect to others, 
with respect to him, they have, in war and in peace, 
in public and in private life, been as steady as his 
own firm mind, and as constant as his own exalted 
virtues. 

" Let us, then, Mr. Speaker, pay the last tribute of 
respect and affection to our departed friend. Let 
the grand council of the nation display those senti- 
ments which the nation feels. For this purpose I 
hold in my hand some resolutions which I take the 
liberty of offering to the House." 

These resolutions, ^ after a preamble stating 
the death of General Washington, were m the 
following terms ; — 

" Resolved, that this House will wait on the Pres- 
ident in condolence of this mournful event. 

1 They were prepared by General Henry Lee, who, happen, 
ing not to be in his place when the melancholy iutelligence 
was received and first mentioned in the House, placed them 
in the hands of the member who moved them. 



142 JOHN MARSHALL. 

" Resolved, that the Speaker's chair be shrouded 
with black, and the members and officers of the 
House wear black, during the session. 

" Resolved, that a committee, in conj unction with 
one from the Senate, be appointed to consider the 
most suitable manner of paying honors to the mem- 
ory of the man first in war, first in peace, and first 
in the hearts of his fellow-citizens." 

In the deliberations of the House of Repre- 
sentatives Mr. Marshall, who was ever ''swift 
to hear, but slow to speak," was constrained by 
circumstances to take a somewhat active part. 
His reputation for ability, his experience in 
public affairs, both at home and abroad, and 
the earnest desire of members to learn his 
views, forced him to occupy the floor oftener 
than he desired. On all questions involving 
international and constitutional law he soon 
became the leading authority ; to discuss these 
was, with him, to exhaust them, for he left 
nothing more to be said. Of such a character 
was the question raised by a resolution offered 
by Mr. Livingston of New York, ■ arraigning 
the President's conduct in surrendering to the 
British authorities, under a clause of Jay's 
treaty, one Thomas Nasli, better known un- 
der his assumed name of Jonathan Robbins, 
claimed as a British subject upon a charge of 
murder committed on the high seas on board 



IN CONGRESS. 143 

an English frigate. Robbins falsely claimed 
to be an American citizen and to have been 
impressed into the British navy. He was ar- 
rested and imprisoned for his alleged crime in 
Charleston, South Carolina, at the instance of 
the British consul. The British minister made 
a requisition on the President for his surrender 
as a fugitive from justice. Under the provis- 
ions of the treaty, the United States judge in 
Charleston was advised by President Adams to 
surrender him to the British authorities, pro- 
vided the evidence against him was such as, by 
the laws of this country, would justify his com- 
mitment for trial if the crime had been laid 
within the jurisdiction of the United States. 
The evidence of his criminality being satisfac- 
tory to the federal court, he was accordingly 
remanded into the custody of the British con- 
sul, was tried by a court-martial, found guilty, 
and executed. He confessed before his death 
that he was an Irishman. 

This was the first case of the extradition of 
an alleged criminal arising under international 
law, recognized and enforced by treaty. Great 
popular excitement prevailed in the country 
in consequence of the surrender, inasmuch as 
the man alleged himself to be an American 
citizen, w^ho had been unlawfully imprisoned 
and had committed the homicide in an attempt 



144 ' JOHN MARSHALL. 

to free himself from an illegal detention. But 
it was conceded at length, in the course of the 
debate in Congress, that he was not an Amer- 
ican citizen, and that he had been guilty of the 
crime for which he had suffered death. 

Mr. Marshall defended the course of the 
President in a close, argumentative speech, in 
which he maintained, — 

I. That the case came within the plain lan- 
guage of the treaty. 

II. That it was a question of executive and 
not of judicial cognizance. 

III. That the President could not be justly 
chargeable with any interference with the ju- 
dicial department of the government. 

In the discussion and defense of these prop- 
ositions he was eminently successful, so much 
so, indeed, that although the case had become 
a party question, and had warmly enlisted 
party feelings, many of the Republicans voted 
with Marshall, and the resolutions of censure 
were lost by the decided vote of thirty-five 
ayes to sixty -one noes. It was by Marshall 
that public opinion was thus effectually changed, 
— a result not often achieved by any number 
of speeches in times of extreme partisan excite, 
ment. Mr. Binney says of it : — 

" The speech which he delivered upon this questiou 
is believed to be the only one that he ever revised, 



IN CONGRESS. 145 

and it was worthy of the case. It has all the merits, 
and nearly all the weight, of a judicial sentence. It 
is throughout inspired by the purest reason and the 
most copious and accurate learning. It separates the 
executive from the judicial power by a line so dis- 
tinct and a discrimination so wise, that all can per- 
ceive and approve it. It demonstrated that the sur- 
render was an act of political power, which belonged 
to the executive ; and by excluding all such power 
by the grant of the constitution to the judiciary, it 
prepared a pillow of repose for that department, 
where the success of the opposite argument would 
have planted thorns." -^ 

We cannot afford space for this great argu- 
ment, but we make room for an extract, which 
embodies such fairness, such a sense of justice, 
and such clearness of argument, as to deserve 
preservation. 

" The gentleman from Pennsylvania [Mr. Galla- 
tin] has said that an impressed American seaman, who 
should commit homicide for the purpose of liberating 
himself from the vessel in which he was confined, 
ought not to be given up as a murderer. In this I 
concur entirely with that gentleman. I believe the 
opinion to be unquestionably correct, as are the 
reasons he has given in support of it. I never heard 
any American avow a contrary sentiment, nor do I 
believe a contrary sentiment can find a place in the 
bosom of an American. I cannot pretend, and dc 

1 Eulogy on Marshall, pp. 53. 54. 
10 



146 JOHN MARSHALL. 

not pretend, to know the opinion of the executive on 
this subject, because I have never heard the opin- 
ions of that department ; but I feel the most perfect 
conviction, founded on the general conduct of the 
government, that it could never surrender an im- 
pressed American to the nation which, in making the 
impressment, committed a national injury. This be- 
lief is iu no degree shaken by the conduct of the 
executive in this particular case. 

" The President has decided that a murder, com- 
mitted on board a British frigate on the high seas, is 
within the jurisdiction of that nation, and conse- 
quently within the twenty- seventh article of its 
treaty with the United States. He therefore directed 
Thomas Nash to be delivered to the British minister, 
if satisfactory evidence of the murder should be ad- 
duced ; the sufficiency of the evidence was submitted 
entirely to the judge. If Thomas Nash had com- 
mitted a murder, the decision was that he should be 
surrendered to the British minister ; but if he had not 
committed a murder, he was not to be surrendered. 
Had Thomas Nash been an impressed American, the 
homicide on board the Hermione would most certainly 
not have been a murder. The act of impressing an 
American is an act of lawless violence. The con- 
finement on board the vessel is a continuation of the 
violence and an additional outrage. Death committed 
within the United States, in resisting such violence, 
is not murder, and the person giving the wound can- 
not be treated as a murderer. Thomas Nash was 
only to be delivered up to justice on such evidence 



IN CONGRESS. 147 

as, had the fact been committed within the United 
States, would be sufficient to have induced his com- 
mitment and trial for murder. Of consequence, the 
decision of the President was so expressed as to ex- 
clude the case of an impressed American liberating 
himself by homicide." 

The full information concerning the facts of 
the case, disclosed by this speech, and the can- 
dor and calmness with which the whole sub- 
ject was treated, produced a marked effect 
upon public opinion, and went far to silence 
the fierce denunciation which a misapprehen- 
sion of those facts had occasioned. 

A striking anecdote is related of the extraor- 
dinary effect produced by the speech of Mr. 
Marshall on this occasion, during its delivery. 
The able and accomplished Albert Gallatin, 
then a member of Congress, at first warmly ad- 
vocated the resolutions of Mr. Livingston, in an 
opening speech. When Mr. Marshall arose to 
reply it was at first Gallatin's intention to an- 
swer him. He took his position near Marshall, 
while that gentleman was speaking, and busied 
himself in making notes of the argument. But 
it was observed that, as the speaker proceeded 
in his usual lucid order, Mr. Gallatin did not 
make very satisfactory progress, and at length, 
pushing aside his papers and pencil, he retired 
to the rear of the hall, where he walked np and 



148 JOHN MARSHALL. 

down, keeping himself, however, within sight 
and hearing of the orator, by whom his atten- 
tion was riveted. One of Gallatin's friends, 
who knew that he was expected to reply, ap- 
proached him and inquired why he had ceased 
to take notes, asking if he did not mean to 
speak. Mr. Gallatin answered, "I do not." 
'* Why not ? " demanded his interlocutor. " Be- 
cause I cannot.,'''' was the reply. " If you can, I 
wish you would. There is absolutely no reply 
to make, for his speech is unanswerable.^^ 

Mr. Marshall earned also, at this session of 
Congress, the proud distinction of placing the 
obligations of duty and right far above party 
feelings and the behests of party discipline. 
No measure of policy during the Adams ad- 
ministration, of which Marshall was a strong 
supporter, was more warmly associated with 
party feeling, and more vigorously defended by 
the party zeal of the President's friends, than 
the Alien and Sedition laws, passed at a pre- 
vious session of Congress when Mr. Marshall 
was not a member. It was now proposed to 
repeal the second section of the latter act, 
which formed the sedition feature of the law. 
Mr. Marshall honestly disapproved of it and 
voted for its repeal, while the names of all those 
with whom he generally consorted and acted 
are recorded on the opposite side. It has long 



IN CONGRESS. 149 

aince been generally conceded that these acts 
were gross blunders, the offspring of excited 
partisan feeling. Marshall's cool judicial sense 
made him fully cognizant of their objectionable 
character, and he could not be driven by the 
party whip to support them. He was never 
afraid to do right, and did not pause to consider 
whether he would have to stand alone in his 
course or not. Mindful of the lesson taught in 
Holy Writ, he would " not follow a multitude 
to do evil." He always preferred the right to 
the popular side, and acted like Henry Clay 
in the matter of the annexation of Texas, 
when that upright statesman said, while voting 
against an act approved by a large majority of 
his countrymen, but which he honestly con- 
demned : " I would rather be right than be 
President ; " a declaration which, by the way, 
probably cost Clay his election to the presi- 
dency. 

Congress adjourned on the 14th of May, 
1800, and Marshall, having been again in- 
vited by President Adams to a seat in the re- 
organized cabinet, accepted the post of secre- 
tary of state, and consequently resigned his 
place in Congress. 



CHAPTER IX. 

IN ME. ADAMS's CABINET. 

1800-1801. 

On the reorganization of the cabinet of Pres- 
ident Adams, Mr. Marshall was nominated by 
the President to the war department, which had 
been lately vacated by the resignation of Gen- 
eral James McHenry. Mr. Marshall had not 
been consulted concerning this nomination, nor 
indeed had he received any intimation that 
General McHenry was to retire. He declined 
the appointment. But almost immediately af- 
terwards, Mr. Pickering having been removed 
by the President from the state department, 
Mr. Marshall, on the renewed invitation of 
President Adams, accepted that position, and 
Mr. Dexter was appointed secretary of war. 
Although this re-arrangement was occasioned 
by very decided differences of opinion and of 
policy between the President and his secreta- 
ries as to certain public questions, especially 
those affecting our foreign relations, in respect 
to which Mr. Marshall agreed with Mr. Adams, 



IN MR. ADAMS'S CABINET. 15J 

it worked no diminution of the regard there- 
tofore entertained by the discarded secretaries 
towards their successors. Mr. Wolcott, who, 
though sharing in a great degree the senti- 
ments of his retiring colleagues, yet retained 
his place, at the President's request, as head 
of the treasury department, wrote thus at the 
time to Fisher Ames : — 

" Let me not be suspected of entertaining a harsh 
opinion that the gentlemen lately appointed to office 
are not independent men. I highly respect and es- 
teem them both, and consider their acceptance of 
their offices as the best evidence of their patriotism. 
... I consider General Marshall and Mr. Dexter 
as more than secretaries, — as state conservators, — 
the value of whose services ought to be estimated not 
only by the good that they do, but by the mischief 
they have prevented. If I am not mistaken, how- 
ever, General Marshall will find himself out of his 
proper element." ^ 

But in this prophecy Mr. Wolcott was him- 
self mistaken, for Mr. Adams wrote : '' My 
new minister, Marshall, did all to my entire 
satisfaction." As indeed his course in the dis- 
charge of the important duties of the station 
met the public satisfaction also. 

Our relations with Great Britain at the time, 

1 Wolcott to Ames, Gibbs's Administrations of Washington 
and Adams, vol. ii. p. 402. 



152 JOHN MARSHALL. 

also the adjourned questions with France, wore 
a threatening aspect, and called for prudent ac- 
tion to avert serious consequences. The new 
secretary of state addressed himself with char- 
acteristic energy, moderation, and firmness to 
the adjustment of these difficulties, and with 
good results. His instructions to Rufus King, 
our minister to the court of St. James, respect- 
ing the claims of British creditors and neutral 
rights, hold deservedly high rank among Amer- 
ican state papers. 

It was a difficult task in the discussion of 
these questions, with such jealous rivals as Eng- 
land and France, to preserve amicable relations 
with both ; each party being watchful of any 
advantage the opposite side might gain in the 
negotiations. The pretension which those na- 
tions then put forth, that one nation may of 
right interfere in the affairs of another as in- 
dependent as itself, though a postulate of the 
European system of that day, was not con- 
ceded by the United States, but was, on the 
contrary, firmly resisted. Thus Jay's treaty 
had been ratified in spite of the opposition and 
threats of France, and our negotiations with 
France were pushed to a successful issue not- 
withstanding the clamor of England. It was 
in this spirit that the American secretary of 
state wrote in a dispatch to Minister King : — 



IN MR. ADAMS'S CABINET. 153 

" The United States do not hold themselves in 
any degree responsible to France or to Great Britain 
for their negotiations with one or the other of those 
powers, but they are ready to make amicable and 
reasonable explanations to either. The aggressions, 
sometimes of one and sometimes of another belligerent 
power, have forced us to contemplate and prepare for 
war as a probable event. We have repelled, and we 
will continue to repel, injuries not doubtful in their 
nature, and hostilities not to be misunderstood. But 
this is a situation of necessity, not of choice ; it is one 
in which we are placed, not by our own acts, but by 
the acts of others, and which we will change as soon 
as the conduct of others will permit us to change it." 

When the presidential election in 1800 had 
resulted in transferring the choice between Jef- 
ferson and Burr to the House of Representa- 
tives, Mr. Marshall was inclined to the opinion 
that the federal party should support the pre- 
tensions of the latter, though he viewed the 
alternative with great reluctance and regret. 
In the midst of these doubts and difficulties he 
I received a letter from Alexander Hamilton, de- 
I lineating the character of Burr, which seems 
to have shaken his predilection for that gentle- 
\ man. It is in this connection a significant cir- 
cumstance that he was induced to this change 
of mind by Hamilton's arguments. He wrote 
to Hamilton as follows : — 



154 JOHN MARSHALL. 

" Being no longer in the House of Representatives, 
and, consequently, being compelled by no duty to de- 
cide between them, my own mind had scarcely de- 
termined to which of these gentlemen the preference 
was due. To Mr. Jefferson, whose political character 
is better known than that of Mr. Burr, I have felt 
almost insuperable objections. His foreign prejudices 
seem to me totally to unlit him for the chief magis- 
tracy of a nation which cannot indulge those preju- 
dices without sustaining deep and permanent injury. 

"In addition to this solid and immovable objection, 
Mr. Jefferson appears to me to be a man who will em- 
body himself with the House of Representatives, and, 
by weakening the office of President, he will increase 
his personal power. He will diminish his reponsibil- 
ity, sap the fundamental principles of the government, 
and become the leader of that party which is about 
to constitute the majority of the legislature. . . . 
With these impressions concerning Mr. Jefferson, I 
was, in some degree, disposed to view with less ap- 
prehension any other characters, and to consider the 
alternative now offered us as a circumstance not to 
be entirely neglected. 

" Your representation of Mr. Burr, with whom I 
am entirely unacquainted, shows that from him still 
greater danger than from Mr. Jefferson may be ap- 
prehended. Such a man as you describe is more to 
be feared, and may do more immediate if not greater 
mischief. Believing that you know him well and are 
impartial, my preference would certainly not be for 
him ; but I can take no part in this business. I can- 



IN MR. ADAMS'S CABINET. 155 

not briog myself to aid Mr. Jefferson. Perhaps re- 
spect for myself should, in my present situation, 
deter me from using any influence — if indeed I pos- 
sess any — in support of either gentleman. Although 
no consideration could induce me to be the secretary 
of state while there was a President whose political 
system I believed to be at variance with my own, 
yet this cannot be so well known to others, and it 
might be suspected that a desire to be well with the 
successful candidate had in some degree governed 
my conduct." ^ 

In closing this sketch of Mr. Marshall as sec- 
retary of state, it is perhaps not improper to 
advert briefly to certain alleged transactions in 
his conduct of that department which, if true, 
would mark with some reproach the final hours 
of his administration, but against the truth of 
which his whole life is a pregnant protest. 

It was while secretary of state, as we shall 
see in the succeeding chapter, that Mr. Marshall, 
on the 31st of January, 1801, was appointed 
Chief Justice of the United States, only a little 
more than one month before the expiration of 
the term of office of President Adams. He took 
the oath of office and his seat on the bench of 
the Supreme Court at the commencement of 
the next term, namely, on the 4th of February, 

1 Marshall to Hamilton, January, 1801. Hamilton's Works, 
vol. ii. p, 445. 



156 JOHN MARSHALL. 

1801, as the records of the court show. It was 
at the special request of President Adams, by 
a letter dated on the same day, that Mr. Mar- 
shall continued to act as secretary of state until 
his successor should be appointed ; or, to use the 
language of the President's letter, " until ulte- 
rior arrangements can be made." Again on 
March 4, inauguration day, he was requested 
by President Jefferson to perform the same du- 
ties for the like interval. His successor, Mr. 
Madison, was appointed on the next day ; but 
Madison being absent, Mr. Levi Lincoln was 
designated to perform the duties of the office 
until the arrival of Mr. Madison. These dates 
are suggestive and important, as they serve to 
correct and disprove the misstatements referred 
to, circulated by political opponents for party 
purposes. 

The story is, that late at night on the 3d of 
March, President Adams was rapidly making 
Federalist nominations to high official positions, 
and sending them to the Senate for confirma- 
tion, and that Secretary Marshall was zealously 
engaged in his office in signing them ; that mid- 
night overtook him still thus employed, when 
Levi Lincoln, the in-coming attorney general 
of the new government, walked into the secre- 
tary's office, with Mr. Jefferson's watch in his 
hand, pointed to the hour of twelve, and thus 



IN MR. ADAMS'S CABINET. 157 

stopped the further progress of the not very- 
reputable business. Many unsigned commis- 
sions, it was said, still lay on the table. Such 
conduct, it was alleged, bad enough in itself, 
was made worse by the pledge of generous for- 
bearance which Mr. Jefferson had given, to the 
effect that there should be no interference with 
persons holding government positions when he 
should come into ofl&ce. 

In the absence of all proof, and without any 
authority being vouched to support the charge, 
we might have passed over the story without 
even pausing to give it a moment's considera- 
tion, for every intelligent man knows well that 
such an imputation would be contradicted by 
the whole tenor of Marshall's life, and would be 
justly regarded as the mere offspring of party 
malice or invention. But when a modern bi- 
ographer ^ of cleverness and popularity, in re- 
lating the history of these times, ventures to 
impart credibility to the story and to narrate it 
in full, it deserves some notice and justifies a 
call for proof. 

The foregoing unquestionable and easily prov- 
able facts certainly make out an overwhelming 
probability of the untruth of the charge. It is 
to the last degree improbable that Judge Mar- 
shall, being only the locum tenens of the post of 

1 James Parton in Life of Jefferson, pp. -"iSS, 586. 



158 JOHN MARSHALL. 

secretary of state to prevent the lapse of the 
office, a secretary ad interim to prevent a va- 
cancy, and with full employment at the time 
on the bench of the Supreme Court then in 
session, having, in his acceptance of the chief 
justiceship, stepped from the political arena to 
the strictly neutral ground of necessary exemp- 
tion from all party ties and affiliations, should 
so far forget what was due to his own dignity 
and his official position as to descend from that 
lofty eyrie to the dust and discredit of a mere 
squabble for the spoils of Office, in which he 
could have felt no particular interest. 

Again, if this tale be true, the facts must have 
been known to Mr. Jefferson through Levi Lin- 
coln, and would inevitably have incensed him 
with Marshall ; so that it would have been to 
the last degree improbable, so improbable as to 
be almost incredible, that he should have sought 
out Marshall, and at the inauguration on the 4th 
of March should have taken the oath of office 
before him, when any other judge or magistrate 
would have been competent to act ; and it is 
still more improbable and incredible that on 
that very day he should have invited Marshall 
to remain in his cabinet until a successor should 
be appointed ! Moreover, Mr. Jefferson, we 
know, was never reluctant to give vent to his 
complaints and to record them, as his Anas 



i'N MR. ADAMS'S CABINET. 159 

show, against those whom he supposed to stand 
in his way ; and no charge of this kind against 
Marshall appears ; though Jefferson did not like 
Marshall, and found him, upon the bench, a se- 
rious obstacle in the way of Democratic policy. 
Nay, he has left behind him a letter, in which 
he bitterly denounces John Adams's appoint- 
ment of the " midnight judges " and others to 
office in the last hours of his administration, 
without any censure on Secretary Marshall as 
participating in the transaction, whom he cer- 
tainly would not have spared, had he had any 
ground to suspect him of complicity in this 
darkling scene. 

A curious anachronism is involved between 
this " dramatic tale " as told by Mr. Parton 
and Mr. Jefferson's reference to the same occa- 
sion, which serves further to disprove the whole 
story. While the former fixes the midnight 
hour for the '•' outrage on decency " complained 
of, Mr. Jefferson limits the hour to nine o'clock 
at night of the 3d of March, when the transac- 
tions were consummated ! Writing on the sub- 
ject afterwards Jefferson says : " Mr. Adams 
was making appointments, not for himself but 
for his successor, until nine o'clock of the night 
at twelve o'clock of which he was to go out of 
office. This outrage on decency should not 
have its effect except in the life appointments ; 



160 JOHN MARSHALL. 

... as to the others I consider the nominations 
as nullities." The fact, if it occurred as nar-. 
rated by Parton, including the appearance even 
of Mr. Jefferson's own watch among the theat- 
rical " properties," could not have been unknown 
to Jefferson, and was not likely to be set down 
by him with the palliation of three busy hours. 

These facts, which are all patent, and most 
of which are of oflBcial record, afford such dis- 
proof of the statement referred to as to be con- 
clusive. It is safe, therefore, to dismiss the story 
as unworthy of any credence whatever. 

It was in this year, 1801, and soon after his 
retirement from the department of state, that 
the New Jersey College, better known as 
Princeton, conferred on General Marshall the 
degree of LL. D. 



CHAPTER X. 

CHIBF JUSTICE. 
1801-1835. 

The appointment of John Marshall to the 
position of Chief Justice of the United States 
on the 31st of January, 1801, marks an epoch 
in the political and judicial history of the coun- 
try. American jurisprudence, in many respects 
different from English jurisprudence, of which 
it was an offshoot rather than a reproduction, 
was then in its infancy ; and American consti- 
tutional law was, of course and by necessity, a 
science quite unknown to the common law as 
well as to the British statutes in which Amer- 
ican lawyers had been previously trained. The 
creation of a national government by the terms 
of a written paper was, as yet, a bold novelty, 
a brilliant but perilous experiment, made alarm- 
ingly complex by the establishment of collat- 
eral semi-sovereignties in the shape of the thir- 
teen states. People might well be pardoned 
for feeling extreme anxiety and distrust when 
they contemplated the number, variety, and 
11 



162 JOHN MARSHALL. 

difficulty of the questions which must arise to 
be determined by officers, who, however intelli- 
gent and honest, could yet have had no pre- 
vious experience under a system so complex. 
The Constitution of the United States had 
sprung into birth amid popular discussions and 
debates as to the rights of man and the true 
principles of government almost as stormy as 
the long war just ended. Although that con- 
stitution had been adopted by the suffrage of a 
majority of the States of the confederation, yet 
its administration, at every step, was narrowly 
and jealously watched by a large proportion, 
possibly not a minority, of the whole people. 
These opponents almost hopefully predicted 
its speedy failure, and foretold, with something 
like a grim delight, the abundant evils and dis- 
asters which would follow in the wake of its 
overthrow. Many of them labored hard to 
fulfill their own gloomy prophecies. The ma- 
chinery of the new government was not yet 
smoothly adjusted, and the friction incident to 
every new system grated harshly on the public 
sense. The popular apprehension of miscar- 
riage and misfortune had become so sensitive 
that even Washington's patriotic, wise, and cau- 
tious administration was opposed with a vehe- 
mence altogether disproportioned to any ade- 
quate cause. This spirit surprised, at the time, 



J. 



CHIEF JUSTICE. 163 

thoughtful and considerate men, and the mem- 
ory of its excesses even now excites the aston- 
ishment and indignation of succeeding genera- 
tions. The presidency of John Adams, the 
pure patriot and honest statesman of the Rev- 
olutionary era, had fallen into great disfavor 
with the people, and the election of Thomas 
Jefferson, the head and leader of the opposi- 
tion party, denoted a new strain about to be 
applied to the imperfectly developed powers of 
the government, through an entire change in 
the direction of public affairs. 
^y^ It was at this crisis that Mr. Marshall was, 
by the wise choice of President Adams, called 
to the head of the judicial department. In 
this appointment the President, with far-reach- 
ing sagacity, departed from the natural order 
of precedence, which at that time favored 
the promotion of those already on the bench, 
whose judicial experience might be supposed 
to give them superior qualifications. Doubtless 
he was led to the selection of Mr. Marshall 
from the bar by an instinctive perception of a 
peculiar fitness in him for the place. If this 
was so, never, surely, was a more correct ap- 
preciation shown. If President Adams had 
left no other claims on the grateful remem- 
brance of his countrymen than in giving to the 
public service this great magistrate, so pure 



164 JOHN MARSHALL. 

and so wise, he would always have lived in 
that act, as a great benefactor of his country. 
The aged patriot survived long enough to see 
abundant proof of the soundness of his choice, 
and to rejoice in it. 

In an unpublished account of a visit of Ed- 
ward C. Marshall, the youngest son of Chief 
Justice Marshall, to the venerable ex-President, 
contained in a private letter addressed to Brooks 
Adams, Esq., Mr. Marshall says : — 

" In the year 1825, I paid a visit to your great- 
grandfather in Quincy. He gave me a most cordial 
reception, and grasping my hands told me that his 
gift of John Marshall to the people of the United 
States was the proudest act of his life. Some years 
after, in conversation with my father, he [my father] 
told me that the appointment was a great surprise to 
him, but afforded him the highest gratification, as, 
with his tastes, he preferred to be Chief Justice to 
;being President." ^ 

It is remarkable that when Mr. Marshall 
was called to the seat of Chief Justice of the 
United States he had never yet filled any judi- 
cial station. In this respect his appointment 
was a very bold step, for although he was 

^ For this original letter, and for other facilities in his work, 
the author is indebted to Mr. John Marshall of Markham, Va., 
the grandson, and to the Marshall family of Happy Creek, 
Warren County, Va., descendants of the Chief Justice. 



CHIEF JUSTICE. 165 

known to be an able lawyer, it did not follow 
that he would, of necessity, make a great judge, 
or, still more, that he would be a competent 
leader of the bench. He was sure to be con- 
fronted in his new position by difficulties and 
embarrassments of the most formidable char- 
acter. Besides being wholly without previous 
judicial experience, he had the peculiar task of 
reaching conclusions in matters wherein books 
and authorities could give him little aid, and 
of being required to solve questions in respect 
to which there were no precedents either in 
theory or practice. Like the sturdy pioneer of 
our western wilderness, he had to cleave his 
way through a pathless forest, with no guide 
but his instinctive resolution, and no help but 
the resources of his native genius and sagacity. 
Such were the solidity and the clearness of 
his understanding, and especially such was his 
ready, almost intuitive perception of the prin- 
ciples of fundamental justice and right, which 
underlie the whole fabric of the law, that even 
on an originally slender foundation of legal ac- 
quirement he soon ^ared a structure which en- 
titled him, in mature life, to the highest rank 
in his profession. * The task which Marshall 
had to perform was the arduous one of construc- 
tion ; fortunately he had to a very striking de- 
gree the constructive faculty, a rare gift and 



166 JOHN MARSHALL. 

certainly the highest form of intellectual ability 
which lawyers can ever use and display. He 
was a builder, from the very foundations, of a 
vast edifice by wholly new rules, under entirely 
novel exigencies, and for ends and purposes 
never before sought. It must be admitted that 
at no time of his forensic or judicial career 
was he remarkable for juridical learning. But 
he possessed that wonderful faculty of a sound 
discriminating judgment and a comprehensive 
sense of right, legal as well as moral, which was 
better than mere law reading. William Pink- 
ney, of Maryland, after listening to several 
opinions rendered by him in the Supreme Court, 
said : " He was born to be the chief justice of 
any country in which he lived ; " and it is within 
the memory of living witnesses and members 
of that bar that he was wont, at times, to say 
substantially in the conclusion of his masterly 
decisions : " These seem to me to be the conclu- 
sions to which we are conducted by the reason 
and spirit of the law. Brother Story will 
furnish the authorities." Of this peculiarity 
of his intellect Judge Story, so long and in- 
timately associated with him, bears testimony. 

" That he possessed an uncommon share of jurid. 
ical learning would naturally be presumed from his 
large experience and inexhaustible diligence ; yet it is 
due to truth as well as to his memory to declare that 



CHIEF JUSTICE. 167 

his juridical learning was not equal to that of many 
of the great masters of the profession, living or dead, 
at home or abroad. He yielded at once to their su- 
periority of knowledge as well in the modern as in 
the ancient law. He adopted the notion of Lord 
Bacon, that 'Studies serve for delight, for ornament, 
and for ability ' ' in the judgment and disposition of 
business.' The latter was his favorite object. Hence 
he read not to contradict and confute, not to believe 
and take for granted, not to find talk and discourse, 
but to weigh and consider.'* 

He also followed another suggestion of that 
great man, that " Judges ought to be more 
learned than witty, more reverent than plausi- 
ble, more advised than confident." The orig- 
inal bias as well as choice of his mind was 
to general principles and comprehensive viewa 
rather than to technical or recondite learning. 
He loved to expatiate upon the theory of equi- 
ty, to elucidate the expansive doctrines of com- 
mercial jurisprudence, and to give a rational 
cast even to the most subtle dogmas of the com- 
mon law. He was solicitous to hear arguments, 
and reluctant to decide causes without them, 
nor did any judge ever profit more by them. 
No matter whether the subject was new or old, 
familiar to his thoughts or remote from them, 
buried under a mass of obsolete learning or 
developed for the first time yesterday, what- 



168 JOHN MARSHALL. 

ever was its nature, he courted argument, nay 
h,e demanded it. 

\j The Chief Justice, when appointed, had 
reached the age of forty-five. William Wirt 
thus describes him : — 

" The Chief Justice of the United States is in his 
person tall, meagre, emaciated; his muscles so re- 
laxed as not only to disqualify him apparently for 
any vigorous exertion of body, but to destroy every- 
thing like harmony in his air and movements. In- 
deed, in his whole appearance and demeanor, dress, 
attitudes, gesture, sitting, standing, or walking he is 
as far removed from the idolized graces of Lord 
Chesterfield as any other gentleman on earth. His 
head and face are small in proportion to his height ; 
his complexion swarthy; the muscles of his face, 
being relaxed, make him appear to be fifty years cf 
age, nor can he be much younger. His countenance 
has a faithful expression of great good humor and 
hilarity, while his black eyes, that unerring index, 
possess an irradiating spirit, which proclaims the 
imperial powers of the mind that sits enthroned 
within." 

About the same period of his life, Mr. Story, 
afterwards Judge Story, then a member of the 
bar, who was in Washington to argue the case 
of Fletcher v. Peck in the Supreme Court, thus 
describes the Chief Justice, in a letter to a 
friend : — 



CHIEF JUSTICE. 169 

**, Marshall is of a tall, slender figure, not graceful 
or imposing, but erect and steady. His hair is black, 
his eyes small and twinkling, his forehead rather 
low, but his features are in general harmonious. His 
manners are plain, yet dignified, and an unaffected 
modesty diffuses itself through all his actions. His 
dress is very simple, yet neat. His language chaste, 
but hardly elegant. It does not flow rapidly, but it 
seldom wants precision. In conversation he is quite 
familiar, but is occasionally embarrassed by a hesi- 
tancy and drawling. His thoughts are always clear 
and ingenious, sometimes striking, and not often in- 
conclusive. 

" He possesses great subtlety of mind, but it is only 
occasionally exhibited. 1 love his laugh, it is too 
hearty for an intriguer ; and his good-temper and un- 
wearied patience are equally agreeable on the bench 
and in the study. . . . 

" He examines the intricacies of a subject with calm 
and persevering circumspection and unravels its mys- 
teries with irresistible acuteness." ^ 

" There is no man in the court that strikes 
me like Marshall," wrote Daniel Webster, then 
a member of Congress from New Hampshire. 
" I have never seen a man of whose intellect I 
had a higher opinion." ^ 

Once, in allusion to the common expression 
of the Chief Justice, " It is admitted," Web- 

1 Story's Life and Letters, vol i. p. 166. 

2 Private Correspondence of Daniel Webster, \o\, i. p. 243. 



170 JOHN MARSHALL. 

ster remarked to Judge Story, " When Judge 
Marshall says, ' It is admitted,' sir, I am pre- 
paring for a bomb to burst over my head and 
demolish all my points." ^ 

The abilities of the new Chief Justice were 
recognized by the profession and the public at 
the time of his appointment, but the attractive 
qualities of his heart and his kindly manners 
soon caused respect and reverence to ripen into 
affection. Perhaps no Ajnerican citizen except 
Washington ever conciliated so large a measure 
of popularity and public esteem. He combined 
in a remarkable degree those attributes of mind 
and disposition which eminently fitted him for 
his station and made him a great magistrate. 

" His mind," in the words of an accomplished con- 
temporary writer,^ " is not very richly stored with 
knowledge, but it is so creative, so well organized by 
nature, or disciplined by early education and constant 
habits of systematic thinking, that he embraces every 
subject with the clearness and facility of one pre- 
pared by previous study to comprehend and explain 
it. So perfect is his analysis that he extracts the 
whole matter, — the kernel of inquiry, unbroken, 
clean, and entire. In this process, such are the in- 
stinctive neatness and precision of his mind that no 
superfluous thought or even word ever presents itself, 

1 Story's Life and Letters, vol. ii. p. 505. 

2 Sketches and Essays of Public Characters, by Francis W. 
Gilmer. 



CHIEF JUSTICE. 171 

and still he says everything that seems appropriate 
to the subject." 

" It was matter of surprise," says Judge Story, " to 
see how easily he grasped the leading principles o| a 
case and cleared it of all its accidental incumbrances ; 
how readily he evolved the true points of the contro- 
versy, even when it was manifest that he never before 
had caught even a glimpse of the learning upon which 
it depended. Perhaps no judge ever excelled him in 
the capacity to hold a legal proposition before the 
eyes of others in such various forms and colors. It 
seemed a pleasure to him to cast the darkest shades 
of objection over it, that he might show how they 
could be dissipated by a single glance of light. He 
would, by the most subtle analysis, resolve every ar- 
gument into its ultimate principles ; and then, with a 
marvelous facility, apply them to the decision of the 
cause." 

It is worthy of remark that perhaps no 
court has ever had the advantage of a more 
distinguished and able bar to practice in it 
than was the bar of the Supreme Court at the 
time when Marshall presided there. Of the 
thirteen original states, Massachusetts contrib- 
uted the great names of Dexter and Webster, 
New York sent Hoffman, AY ells, Ogden, Em- 
mett, and Oakly ; Pennsylvania supplied Tilgh- 
man, Rawle, Ingersoll, Duponceau, Hopkinson, 
Sergeant, and Binney ; Maryland asserted a 
high place in the persons of William Pinkney 



172 JOHN MARSHALL. 

and Robert Goodloe Harper ; and Virginia was 
well represented by Wickham, Tazewell, Leigh, 
Edmund Randolph, Robert B. Taylor, Patton, 
the brilliant Wirt, and Walter Jones. The de- 
cisions of the Chief Justice may be said to bear 
the impress as well of the minds of these great 
lawyers as of his own. 

In surveying the results of the labors of 
thirty-four years recorded in thirty-two vol- 
umes of reports, it is obvious that it was in the 
decision of cases involving international and 
constitutional law that the force and clearness 
of the Chief Justice's intellect shone most con- 
spicuous. Such was the ready assent of his col- 
leagues on the bench to his supremacy in the 
exposition of constitutional law, that in such 
causes a dissenting opinion was almost unknown. 
Having had occasion to discuss and thoroughly 
study the Constitution, both in the Virginia 
convention which adopted it and afterward in 
the legislature, he had preconceived opinions 
concerning it, as well as perfect familiarity 
with it. But in the hot contest waging be- 
tween the friends of a strict and those of a 
liberal construction of its language, he wished 
to take no part. He stated that there should 
be neither a liberal nor a strict construction, 
but that the simple, natural, and usual meaning 
of its words and phrases should govern their in* 



mM 



CHIEF JUSTICE. 173 

terpretation.^ In the case of Gibbons v. Ogden, 
in which he is called upon to define the true 
rule of construction of the United States Con- 
stitution regarding the rights of the States and 
the rights and powers of the general govern- 
ment, he studiously avoids each extreme, steer- 
ing safely in the middle course. He lays down 
his own rule thus clearly and definitely : — 

" This instrument contains an enumeration of pow- 
ers expressly granted by the people to their govern- 
ment. It has been said that these powers ought to 
be construed strictly ; but why ought they to be so 
construed ? Is there one sentence in the Constitution 
which gives countenance to this rule ? . In the last of 
the enumerated _powers, that which_graiits..expressly 
the means for carrying all others into execution, Con- 
gress is authorized to make all laws that.^ ^b^lL^P 
necessary and proper for the purpose. But this 
limitation on the means which may be used is not 
extended to the powers which are conferred, nor is 
there one sentence in the Constitution which has been 
pointed out by the gentlemen of the bar, or which 
we have been able to discern, that prescribes this 
rule. We do not therefore think ourselves justified 
in adopting it. What do gentlemen mean by a strict 
construction ? If they contend only against that en- 
larged construction which would extend words beyond 
their natural and obvious import, we might question 

1 Wheaton, vol. ix. p. 187. 



174 JOHN MARSHALL. 

the application of the term but should not controvert 
the principle. If they contend for that narrow con- 
struction which, in support of some theory not to be 
found in the Constitution, would deny to the govern- 
ment those powers which the words of the grant, as 
usually understood, import, and which are consistent 
with the general views and objects of the instrument ; 
for that narrow construction which would cripple the 
government, and render it unequal to the objects for 
which it is declared to be instituted, and to which the 
powers given, as fairly understood, render it com- 
petent ; then we cannot perceive the propriety of this 
strict construction, nor adopt it as a rule by which 
the Constitution is to be expounded." 

And again, — 

" Powerful and ingenious minds, taking as postu- 
lates that the powers expressly granted to the Union 
are to be contracted by construction into the nar- 
rowest possible compass, and that the original powers 
of the States are retained, if any possible construction 
will retain them, may, by a course of well digested but 
refined and metaphysical reasoning founded on these 
premises, explain away the Constitution of our country 
and leave it a magnificent structure indeed to look at, 
but totally unfit for use. They may so entangle and 
perplex the understanding as to obscure principles 
which were before thought quite plain, and induce 
doubts where, if the mind were to pursue its own 
course, none would be perceived. In such a case it 
is peculiarly necessary to recur to safe and fundament 



CHIEF JUSTICE. 175 

tal principles, to sustain those principles, and when 
sustained to make them the tests of the arguments to 
be examined." 

" In another case — Ogden v. Saunders ^ — he 
expounds incidentally the rule which ought to 
be applied to the construction of the Constitu- 
tion. 

" To say," he observed, " that the intention of the 
instrument must prevail, that this intention must be 
collected from its words, that its words are to be under- 
stood in that sense in which they are generally used 
by those for whom the instrument was intended, that 
its provisions are neither to be restricted into insig- 
nificance, nor extended to objects not comprehended 
in them nor contemplated by its framers, is to repeat 
what has been already said more at large, and is all 
that can be necessary." 

These are undoubtedly wise and sound views 
of the scope and powers of the federal govern- 
ment under the Constitution, which cannot be 
controverted. In view of our bitter experience 
of the evils of departing from them, exempli- 
fied in the disastrous and destructive civil war 
through which our country has so recently 
passed, it would seem that the language of the 
venerated Chief Justice was almost prophetic. 
Neither forcible nullification nor peaceable se- 
cession, claimed as legal and constitutional rem- 

1 Wheaton, vol. xii. p. 332. 



176 JOHN MARSHALL. 

edies for r^al or imaginary political wrongs, 
were to- ^ found in the Constitution. They 
were the natural outcome of that narrow con- 
struction of the instrument which denied to the 
government those powers of self-assertion and 
self-preservation which were necessary not only 
to its purposes, but even to its existence. 

Marshall's dictum that there must be neither 
a strict nor a liberal construction of the Con- 
stitution, but that the natural meaning of the 
words must govern, was undoubtedly sound and 
wise. The broad proposition was above criti- 
cism ; it meant only that the language of the 
instrument should not be stretched or wrenched 
in any direction ; and however politicians or 
even statesmen might feel, there was no other 
possible ground for a judge to take. Jefferson 
might regard it as a duty to make the Con- 
stitution as narrow and restricted as possible ; 
Hamilton might feel that there was an actual 
obligation upon him to make it as broad and 
comprehensive as its words would admit. But 
Jefferson and Hamilton, in a different depart- 
ment of public life from Marshall, had duties 
and obligations correspondingly different from 
his. They might properly try to make the 
Constitution mean what it seemed to them for 
the public welfare that it should mean. Mar- 
shall could not consider any such matter; he 



CHIEF JUSTICE. 177 

had only to find and declare what it did mean, 
what its words actually and properly declared, 
not what they might possibly or desirably be 
supposed or construed to declare. This was the 
real force and the only real force of his fore- 
going assertion. As an abstract statement of 
his function it was impregnable. 

But, as with most broad principles, the dif- 
ficulty lay in the application of it to particu- 
lar cases. The constitutional questions which 
came before Marshall chiefly took the form of 
whether or not the Constitution conferred some 
power or authority upon Congress, or upon the 
Executive. Then the Federalist lawyers tried 
to show how much the language could mean, 
and the anti-Federalist counsel sought to show 
how little it could mean, and each urged that 
public policy was upon his side. The decision 
must be yes or no ; the authority did or did not 
rest in the government. It was easy to talk 
about the natural and proper meaning of the 
words ; but after all it was the question at 
issue; did they (not could they) say yes, or did 
they (not could they) say no, to the special au- 
thority sought to be exercised. 

Now it is one thing to be impartial and an- 
other to be colorless in mind. Judge Marshall 
was impartial and strongly possessed of the 
judicial instinct or faculty. But he was by no 

12 



178 JOHN MARSHALL. 

means colorless. He could no more eliminate 
from his mind an interest in public affairs, and 
opinions as to the preferable forms of govern- 
ment and methods of administration, than he 
could cut out and cast away his mind itself. 
Believing that the Constitution intended to 
create and did create a national government, 
and having decided notions as to what such a 
government must be able to do, he was subject 
to a powerful though insensible influence to 
find the existence of the required abilities in 
the government. Thus when he was asked 
what certain words meant, the meaning which 
they bore to his mind would often be different 
from the meaning which they bore to the mind 
of a person differing from him in opinion con- 
cerning the subject to which the words related. 
The meaning which the words had for him in- 
evitably seemed their natural and proper mean- 
ing. Thus in all cases of doubt the decision 
must reflect the complexion of his mind. It 
cannot be denied, nor is it at all derogatory 
to him, that this was the case. The great 
majority of his decisions were in accordance 
with Federalist principles of construction and 
of polic3^ The Republicans all denounced him 
as a Federalist, even of an extreme type. The 
Federalists accepted him as one of themselves, 
but of course considered that, as a clear-minded 



CHIEF JUSTICE, 179 

and honest man, he could be nothing else. His 
very federalism was to them proof of his im- 
partiality and sound judgment. 

It is coming gradually to be conceded that 
the prevalence of the Federalist policy during 
the early years of our nationality was very 
fortunate for the country ; that the party es- 
tablished a government neither too powerful 
nor too centralized ; whereas the Republicans, 
if they had conquered the administration in 
the first plastic years, might have dangerously 
emasculated it. Marshall's decisions have al- 
ways been regarded as wise and fortunate for 
the nation. No judge or lawyer enjoys a greater 
or a more deserved reputation as a constitu- 
tional jurist. Yet it is true that in many of the 
causes before him, — take for example the fa- 
mous one involving the constitutionality of the 
United States Bank, — he could have given 
opposite decisions, had he been so minded, and 
as matter of pure law these opposite decisions 
might often have been just as good as those 
which he did give. Ploughing in fresh ground 
he could run his furrows in what direction he 
'thought best, and could make them look straight 
land workmanlike. He had no rocks in the 
shape of authorities, no confusing undulations 
in collections of adjudications tending in one or 
another direction. He was making law ; he 



180 JOHN MARSHALL. 

had only to be logical and consistent in the 
manufacture. He made Federalist law in nine 
cases out of ten, and made it in strong, shapely 
fashion. A Republican judge, however, would 
have brought about a very different result, 
which, as we believe, would have been vastly 
less serviceable to the people, but of which the 
workmanship in a strictly professional and tech- 
nical view might have been equally correct. 
Ni The difficulty of the task which Marshall had 
to perform must not be underrated by reason 
of this description. It may seem to the layman 
that it is a very easy matter to be a judge 
where one is, in a certain sense, equally free 
to decide arbitrarily in either the negative or 
the affirmative. The contrary is the case. To 
travel over a road paved with authorities and 
lined out by adjudications is a much simpler 
task than to cut a new road in a strange terri- 
tory. Moderate learning, the aid of counsel's 
arguments, painstaking and cautious habits, a 
little subtlety of mind, and good technical train- 
ing, will make a very reputable judge for the 
ordinary work of the bench. But to construct 
law, to frame in any department a system of 
jurisprudence, are tasks which call for an intel- 
lect of the highest order. The few judges who 
have performed such labors. Holt, Mansfield, 
Marshall, are the really great juridical lights. 



CHIEF JUSTICE. 181 

It may seem that it was comparatively simple 
for Marshall, in any case of entirely no veh com- 
plexion, to say, It is — or. It is not — within 
the Constitution. But to support the decision 
by an opinion professionally and technically 
satisfactory, framed in accordance with the 
spirit of English law, consonant with its fun- 
damental principles, to make it really satisfac- 
tory as a judicial opinion and not to leave it 
either as a ruling or an argument, was a much 
more difficult undertaking, which none save 
lawyers can fully appreciate. To deliver many 
such opinions, which, though upon distinct ques- 
tions, should yet so combine and harmonize as 
in conjunction to create a system of constitu- 
tional law, was an achievement to which few 
judges who have ever lived could prove compe- 
tent. The legal cast of mind must exist in a 
rare degree; the judicial faculty, an intellectual 
gift far beyond mere impartiality, must have 
an extraordinary development ; great mental 
reach and scope, much exceeding what is usu- 
ally admired as clearness of mind, are indispen- 
sable. The judge who rears such a monument 
to his memory will never be forgotten ; in the 
united domain of English and American juris- 
prudence there are not half a dozen such me- 
morials ; but not the least distinguished is that 
of Marshall. 



182 JOHN MARSHALL. 

It is impracticable so much as to mention 
even all the important causes in which Mar- 
shall delivered the opinions. Yet a very few 
may, with difficulty, be selected from the mass 
for the purpose, at least, of showing his manner 
of treatment, if nothing more. 

The first case in which he had to deal with 
a constitutional question involved the inquiry 
as to the power and the duty of the court to 
set aside an act of Congress because of its re- 
pugnance to the federal Constitution. This 
was in Marbury v. Madison.^ The case pos- 
sesses a peculiar interest because the decision 
was ver}^ distasteful to the President, and the 
opinion of the court delivered by the Chief 
Justice elicited a captious and very unbecom- 
ing criticism from Mr. Jefferson. The facts 
were as follows : — 

President Adams, before the expiration of 
his term of office, nominated Marbury to the 
Senate as justice of the peace for the District 
of Columbia. The nomination was confirmed 
by the Senate. A commission was filled up, 
signed by the President, and sealed with the 
seal of the United States, but had not been 
delivered when Mr. Jefferson succeeded to the 
office. He, acting on the idea that the ap- 
pointment was incomplete and void so long as 
1 Cranch's Reports, vol. i. p. 158. 






CHIEF JUSTICE. 183 

the commission remained undelivered, counter- 
manded its issue. A petition for a mandamus 
was presented to the court by Marbury, re- 
quiring Mr. Madison, the secretary of state, to 
deliver it. The aid of the court was invoked 
on the ground that an act of Congress author- 
ized that court " to issue writs of mandamus, 
in cases warranted by the principles and usages 
of law, to any courts appointed by or persons 
holding office under the authority of the United 
States." Two questions here presented them- 
selves : — 

I. Whether the authority thus given to the 

Supreme Court, by the said act, to issue writs 

( of mandamus to public officers was warranted 

by the Constitution. 
j II. If not, whether the court was competent 
j to declare void the act which undertook to con- 
fer the authority. 
I The court first considered whether Marbury 
* had a right to the commission which he claimed, 
and they decided that he had ; that an ap- 
j pointment is complete when the commission is 
i signed by the President, and when the seal of 
I the United States has been affixed to it ; and 
that to withhold such commission from an 
! officer not removable at the will of the Exec- 
utive is violating a vested legal right. 

As the legality of his conduct in directing 



184 JOHN MARSHALL. 

Mr. Madison to withhold the commission from 
Marbury was drawn in question, though in no 
offensive sense, Mr. Jefferson might be par- 
doned for feehng much interest in the result. 
He took the ground that the validity of a com- 
mission, like that of a deed, depends on its de- 
livery. The court thought otherwise; but as 
they also held that they had no cognizance of 
the case, because the act of Congress confer- 
ring the power on them was in violation of the 
Constitution, Jefferson considered their opinion 
as to the legality of Marbury's claim gratuitous 
— " an obiter dissertation of the Chief Justice, 
and a perversion of the law." ^ The decision of 
the court, however, 'both on the question of 
jurisdiction and on its power and duty to de- 
clare an act of Congress to be unconstitutional 
and void has always commanded universal as- 
sent. 

Marshall, Chief Justice, delivering the opin- 
ion of the court, said : — 

" The Constitution vests the whole judicial power 
of the United States in one Supreme Court, and such 
inferior courts as Congress shall, from time to time, 
ordain and establish. 

" In the distribution of this power it is declared 
that ' the Supreme Court shall have original juris- 
diction in all cases affecting ambassadors, other pub* 

1 JeflFerson's Works, vol. vii. p. 290. 



I 



CHIEF JUSTICE. 185 

lie ministers, and consuls, and those in which a State 
shall be a party. In all other cases the Supreme 
Court shall have appellate jurisdiction.' To enable 
this court, then, to issue a mandamus, it must be 
shown to be an exercise of appellate jurisdiction, or 
to be necessary to enable them to exercise appellate 
jurisdiction. It is the essential criterion of appellate 
jurisdiction that it revises and corrects the proceed- 
ings in a cause already instituted, and does not create 
that cause. Although, therefore, a mandamus may 
be directed to courts, yet to issue such a writ to an 
officer for the delivery of a paper is, in effect, the 
same as to sustain an original action for that paper, 
and, therefore, seems not to belong to appellate but 
to original jurisdiction. The authority, therefore, 
given to the Supreme Court, by the act establishing 
the judicial courts of the United States, to issue writs 
of mandamus to public officers, appears not to be 
warranted by the Constitution, and it becomes neces- 
sary to inquire whether a jurisdiction so conferred 
can be exercised. 

"The question whether an act repugnant to the 
Constitution can become the law of the land is a 
question deeply interesting to the United States ; but, 
happily, not of an intricacy proportioned to its in- 
terest. If an act of the legislature repugnant to the 
Constitution is void, does it, notwithstanding: its in- 
validity, bind the courts and oblige them to give it 
effect ? Or, in other words, though it be not a law, 
does it constitute a rule as operative as if it was a 
law ? This would be to overthrow in fact what was 



186 JOHN MARSHALL. 

established in theory ; and would seem, at first view, 
an absurdity too gross to be insisted on. It shall, 
however, receive a more attentive consideration. It 
is emphatically the province and duty of the judicial 
department to .say what the law is. Those who ap- 
ply the rule to particular cases must, of necessity, 
expound and interpret that rule. If two laws con- 
flict with each other, the courts must decide on the 
operation of each. So, if a law be in opposition to 
the Constitution ; if both the law and the Constitution 
apply to a particular case, so that the court must 
either decide that case conformably to the law dis- 
regarding the Constitution, or conformably to the 
Constitution disregarding the law, the court must de- 
termine which of these conflicting rules governs the 
case. This is of the very essence of judicial duty. 
If, then, the courts are to regard the Constitution, 
and the Constitution is superior to any ordinary act 
of the legislature, the Constitution, and not such ordi- 
nary act, must govern the case to which they both 
apply." 

Subsequently and upon the same reasoning, 
in Fletcher v. Peck,^ the court declared void an 
act of the State of Georgia. The legislature 
of this State had passed an act authorizing a 
patent to issue for a tract of land within its 
limits. After the patent had been granted a 
succeeding legislature repealed the act which 
authorized it. It was contended that the first 
1 Cranch's Reports, vol. vi. p. 87. 



CHIEF JUSTICE. 187 

act was repugnant to the Constitution of Geor- 
gia ; that the legislature which passed it had 
been bribed or corrupted ; and that it was not 
competent for one legislative body to restrain a 
succeeding legislature from repealing its acts. 

Marshall, Chief Justice, delivered the opin- 
ion of the court. 

" The question whether a law be void for its re- 
pugnancy to the Constitution is at all times a question 
of much deUcacy, which ought seldom, if ever, to be 
decided in the affirmative in a doubtful case. The 
court, when impelled by duty to render such a judg- 
ment, would be unworthy of its station could it be 
unmindful of the solemn obligations which that sta- 
tion imposes. But it is not on slight implication and 
j vague conjecture that the legislature is to be pro- 
nounced to have transcended its powers, and its acts 
to be considered as void. The opposition between 
the Constitution and the law should be such that the 
judge feels a clear and strong conviction of their in- 
compatibility with each other. In this case the court 
tcan perceive no such opposition. In the Constitution 
of Georgia, adopted in the year 1789, the court can 
perceive no restriction on the legislative powers which 
i inhibits the passage of the act of 1795. The court 
cannot say that, in passing that act, the legislature 
has transcended its powers and violated the Consti- 
tution. 

" The case, as made out in the pleadings, is simply 
this. An individual who holds lands in the State of 



188 JOHN MARSHALL. 

Georgia, under a deed covenanting that the title of 
Georgia was in the grantor, brings an action of cov- 
enant upon this deed, and assigns as a breach that 
some of the members of the legislature were induced 
to vote in favor of the law which constituted the 
contract by being promised an interest in it, and that 
therefore the act is a mere nullity. This solemn 
question cannot be brought thus collaterally and in- 
cidentally before the court. It would be indecent in 
the extreme, upon a private contract between two 
individuals, to enter into an inquiry respecting the 
corruption of the sovereign power of a State. If 
the title be plainly deduced from a legislative act, 
which the legislature might constitutionally pass, if 
the act be clothed with all the requisite forms of law, 
a court, sitting as a court of law, cannot sustain a 
suit brought by one individual against another, founded 
on the allegation that the act is a nullity in conse- 
quence of the impure motives which influenced cer- 
tain members of the legislature which passed the 
law. 

" The principle asserted is, that one legislature is 
competent to repeal an act which a former legislature 
was competent to pass, and that one legislature can- 
not abridge the powers of a succeeding legislature. 
The correctness of this principle, so far as it respects 
general legislation, can never be controverted. But 
if an act be done under a law, a succeeding legis- 
lature cannot undo it. The past cannot be recalled 
by the most absolute power. Conveyances have 
been made, those conveyances have vested legal e* 



CHIEF JUSTICE. 189 

tates, and if those estates may be seized by the sov- 
ereign authority, still that they originally vested is a 
fact, and cannot cease to be a fact. When, then, a 
law is in its nature a contract, when absolute rights 
have vested under that contract, a repeal of the law 
cannot divest those rights. . . . The validity of this 
rescinding act, then, might be doubted, were Georgia 
a single sovereign power. But Georgia cannot be 
viewed as a single, unconnected, sovereign power, on 
whose legislature no other restrictions are imposed 
than may be found in its own Constitution. She is 
a part of a large empire ; she is a member of the 
American Union ; and that Union has a Constitution 
the sujDremacy of which all acknowledge, and which 
imposes limits to the legislatures of the several States, 
which none claim a right to pass. The Constitution 
of the United States declares that 'no State shall 
pass any bill of attainder, ex post facto law, or law 
impairing the obligation of contracts.' 

" Does the case now under consideration come 
within this prohibitory section of the Constitution ? 
In considering this very interesting question we im- 
mediately ask ourselves. What is a contract ? Is a 
grant a contract? 'A contract executed is one in 
which the object of contract is performed ; and this,' 
says Blackstone, * differs in nothing from a grant.* 
The contract between Georgia and the purchasers 
was executed by the grant. A contract executed, as 
well as one which is executory, contains obligations 
binding on the parties. A grant in its own nature 
amounts to an extinguishment of tha right of the 



190 JOHN MARSHALL. 

grantor, and implies a contract not to reassert that 
right. A party is, therefore, always estopped by his 
own grant. ... If, under a fair construction of the 
Constitution, grants are comprehended under the term 
' contracts,' is a grant from a State excluded from 
the operation of the provision ? Is the clause to be 
considered as inhibiting the State from impairing the 
obligation of contracts between two individuals, but 
as excluding from that inhibition in contracts made 
with itself ? The words themselves contain no such 
distinction. They are general, and are applicable to 
contracts of every description. Why, then, should 
violence be done to the natural meaning of words for 
the purpose of leaving to the legislature the power of 
seizing, for public use, the estate of an individual in 
the form of a law annulling the title in which he 
holds the estate ? The court can perceive no suffi- 
cient grounds for making this distinction." 

The case of Dartmouth College,^ which in- 
volved the importaDt question whether a grant 
of corporate powers by Congress is a contract, 
whose obligation the States are inhibited from 
impairing, attracted great attention at the time, 
by reason of some peculiar circumstances sur- 
rounding it, and to this day remains one of the 
most interesting and important causes which 
have ever arisen in the Supreme Court. The 
facts were these : A charter was granted to 
Dartmouth College in 1769 by the Crown, on 

1 Wheaton, vol. iv. p. 518. 



CHIEF JUSTICE. 191 

the representation that property would be given 
to the college, if chartered ; and after the char- 
ter was granted property was actually given. 
In 1816 the legislature of New Hampshire 
passed three acts amending the charter, which 
amendments the trustees would not accept. 
They resorted to the aid of the state courts, 
where judgment was given against them ; then 
they appealed their case to the Supreme Court. 
Mr. Hopkinson and Mr. Webster appeared for 
the college, and the other side was represented 
by Mr. Wirt, then Attorney General of the 
United States, and Mr. Holmes. Great inter- 
est was manifested in the speeches of Webster 
and Wirt. Mr. Webster had argued the case 
in the courts below. He was familiar with the 
whole field of controversy. He was a graduate 
of the college, and his feelings as a man no less 
than his ambition as an advocate urged him to 
the utmost exertion of his intellect. His speech 
before the court consumed more than four 
hours, and was marked by his usual character- 
istics, — great clearness of statement and much 
force and precision in his reasoning. His argu- 
ment was considered one of the greatest of his 
forensic life. His noble peroration is familiar. 
Towards the close of it, overcome by emotion, 
the speaker proceeded with difficulty. Pausing 
to recover his composure, and fixing his eye 



192 JOHN MARSHALL. 

on the Chief Justice, he said in that deep tone 
which so often thrilled the heart of an audi- 
ence : " Sir, I know not how others may feel," 
glancing at the opposing counsel before him, 
" but for myself, when I see my Alma Mater 
surrounded, like Caesar in the senate house, by 
those who are reiterating stab upon stab, I 
would not for this right hand have her turn to 
me and say, Et tu quoque^ mi fill.'''' With this 
he sat down, leaving his whole audience pro- 
foundly moved. 

The argument of Mr. Wirt, in support of the 
acts of the legislature amendatory of the col- 
lege charter, was described as full, able, and 
eloquent. 

^The opinion of the court was delivered by 
Marshall, Chief Justice. 

" This is plainly a contract to which the donors, 
the trustees, and the Crown, to whose rights and ob- 
ligations New Hampshire succeeds, were the original 
parties. It is a contract made on a valuable consid- 
eration. It is a contract for the security and dispo- 
sition of property. It is a contract on the faith of 
which real and personal estate has been conveyed to 
the corporation. It is then a contract within the let- 
ter of the Constitution, and within its spirit also. 
Unless the fact that the property is invested by the 
donors in trustees, for the promotion of religion and 
education, for the benefit of persons who are perpetu- 



CHIEF JUSTICE. 193 

ally changing, although the objects remain the same, 
shall create a particular exception, taking this case 
out of the prohibition contained in the Constitution. 
On what safe and intelligible ground can this excep- 
tion stand ? There is no expression in the Constitu- 
tion, no sentiment delivered by its contemporaneous 
expounders, which would justify us in making it. In 
the absence of all authority of this kind, is there, in 
the nature and reason of the case itself, that which 
would sustain a construction of the Constitution not 
warranted by its words? Are contracts of this de- 
scription of a character to excite so little interest 
that we must exclude them from the provisions of the 
Constitution as being unworthy of the attention of 
those who framed the instrument, or does public pol- 
icy so imperiously demand their remaining exposed 
to legislative alteration as to compel us, or rather 
permit us, to say that these words, which were intro- 
duced to give stability to contracts, and which, in 
their plain import, comprehend this contract, must 
yet be so construed as to exclude it?" 

He then proceeded througli a course of care- 
ful reasoning to give a negative answer to these 
questions, and hence the opinion of the court 
was that the charter constituted a contract 
whose obligation the legislature of New Hamp- 
shire had attempted to impair, and that this 
action of the legislature was repugnant to the 
Constitution of the United States, and conse- 
quently void. 

13 



194 JOHN MARSHALL. 

The celebrated case of McCullocli v. The 
State of Maryland 1 involved the question of 
the constitutional power of Congress to incor- 
porate a national bank, a question which had 
elicited warm discussions throughout the coun- 
try almost from the adoption of the Constitu- 
tion, and which unhappily had been allowed to 
force itself into the political arena. It was in- 
sisted, on the one hand, that the Constitution 
conferred no authority on Congress to create a 
corporation, notwithstanding the clause confer- 
ring the power to make all laws that were nec- 
essary and proper to carry into effect the pow- 
ers enumerated in the instrument; that these 
words meant only such laws as were absolutely 
and indispensably necessary, without which the 
powers conferred must be nugatory. On the 
other hand, it was contended that in order to 
carry on its operations the government must act 
by officers and agents, and that in the choice 
of these it was not restricted to means which 
were only absolutely necessary, but might have 
recourse to such as were proper and necessary 
in the ordinary sense and meaning of these 
words. 

The case grew out of the following facts : 
In April, 1816, Congress incorporated the Bank 
of the United States. In 1817 a branch of this 

1 Wheaton, vol. iv. p. 316. 



CHIEF JUSTICE. 195 

bank was established at Baltimore. In 1818 
the legislature of Maryland passed a law to 
tax all banks or branches thereof situated in 
that State and not chartered by its legislature. 
The branch bank refused to pay this tax, and 
McCulloch, the cashier, was sued for it. Judg- 
ment was rendered against him in the Mary- 
land courts, whence the case was carried before 
the Supreme Court, and the decision of that 
tribunal was looked for with great interest. 
The most distinguished counsel were engaged 
in the conduct and argument of the cause. 
Pinkney, Wirt, and Webster were of counsel 
for the Bank ; Luther Martin, Hopkinson, and 
Walter Jones appeared for the State of Mary- 
land. It is said that on this occasion Pinkney, 
who made the closing argument, delivered a 
speech of unrivaled splendor and power. In 
delivering the opinion, Marshall, Chief Justice, 
said : — 

" Although among the enumerated powers of gov- 
ernment we do not find the word Bank, or Incorpo- 
ration, we find the great powers to lay and collect 
taxes, to borrow money, to regulate commerce, to de- 
clare and conduct a war, and to raise and support 
armies and navies. The sword and the purse, all 
the external relations, and no inconsiderable portion 
of the industry of the nation, are intrusted to its gov- 
ernment. The power being given, it is the interest 



196 JOffN MARSHALL. 

of the nation to facilitate its execution. It can never 
be their interest, and cannot be presumed to have 
been their intention, to clog and embarrass its exe- 
cution by withholding the most appropriate means. 
Throughout this vast republic, from the St. Croix to 
the Gulf of Mexico, from the Atlantic to the Pa- 
cific, revenue is to be collected and expended, ar- 
mies are to be marched and supported. ... Is that 
construction of the Constitution to be preferred which 
would render these operations difficult, hazardous, and 
expensive ? Can we adopt that construction, unless 
the words imperiously require it, which would im- 
pute to the framers of that instrument, when grant- 
ing these powers for the public good, the intention of 
impeding their exercise, by withholding the choice of 
means ? The government, which has a right to do an 
act, and has imposed on it the duty of performing 
that act, must, according to the dictates of reason, be 
allowed to select the means ; and those who contend 
that it may not select any appropriate means, that 
one particular mode of effecting the object is ex- 
cepted, take upon themselves to prove the exception. 
. . . But the Constitution of the United States has 
not left the right of Congress to employ the neces- 
sary means for the execution of the powers conferred 
on the government to general reasoning. To its enu- 
meration of powers is added that of making * all 
laws which shall be necessary and proper for carrying 
into execution the foregoing powers and all other 
powers vested by this Constitution in the government 
of the United States or any department thereof.' 



CHIEF JUSTICE. 197 

To employ the means necessary to an end is gen- 
erally understood as employing any means calculated 
to produce the end, and not as being confined to 
those single means without which the end would be 
entirely unattainable. . . . The good sense of the 
people has pronounced without hesitation that the 
power of punishment appertains to sovereignty, and 
may be exercised, whenever the sovereign hag a right 
to act, as incidental to his constitutional powers. It 
is a means for carrying into execution all sovereign 
powers, and may be used, although not indispensably 
necessary. It is a right incidental to the power and 
conducive to its beneficial exercise. If the word nec- 
essary means needful, essential, requisite, conducive to, 
in order to let in the power of punishment for the 
infraction of law, why is it not equally comprehen- 
sive, when required to authorize the use of means 
which facilitate the execution of the powers of gov- 
ernment, without the infliction of punishment?" 

As to the other question, whether the Bank 
or its branches may be taxed by the States, he 
said : — 

" That the power to tax involves the power to de- 
stroy ; that the power to destroy may defeat and 
render useless the power to create ; that there is a 
plain repugnance in conferring on one government a 
power to control the constitutional measures of an- 
other, which other, with respect to those very meas- 
ures, is declared to be supreme over that which exerts 
the control, are propositions not to be denied. If the 



198 JOHN MARSHALL. 

States may tax one instrument employed by the gov- 
ernment in the execution of its powers, they may 
tax any and every other instrument. They may tax 
the mail ; they may tax the mint ; they may tax 
patent rights ; they may tax the papers of the cus- 
tom-house ; they may tax judicial process ; they may 
tax all the means employed by the government, to 
an excess which would defeat all the ends of govern- 
ment. This was not intended by the American peo- 
ple. They did not design to make their government 
dependent on the States." 

The decision of the court, in harmony with 
this reasoning, was that Congress possessed the 
power to charter the Bank with branches in 
any of the States, and that such branches could 
not be taxed by state authority. 

To these leading cases, in which the Supreme 
Court was called upon, at an early day, to ex- 
pound and reconcile questions of apparent con- 
flict between federal and state laws under the 
Constitution, we add another, which occasioned 
great interest at the time, and has since firmly 
established the rule of law. 

In the case of Cohen v. State of Virginia, 
two very important questions were presented 
for adjudication ; namely, -whether the court 
could exercise jurisdiction, where one of the 
parties was a State and the other was a citi^ 
zen of that State ; and secondly, whether, in the 



CHIEF JUSTICE. 199 

exercise of its appellate jurisdiction, it could 
revise the judgment of a state court, in a case 
arising under the Constitution, laws, and trea- 
ties of the United States. The court held that 
it had jurisdiction in both cases. 

The facts involved in the case were these: 
An act of Congress authorized the city of 
Washington to establish a lottery, and by vir- 
tue of the act the lottery was established. Co- 
hen was indicted at Norfolk, Virginia, for sell- 
ing tickets of this lottery, contrary to a law of 
Virginia prohibiting such sales. In the state 
court he claimed the protection of the act of 
Congress under which the lottery was estab- 
lished ; but judgment being given against him, 
he sued out a writ of error to the Supreme 
Court of the United States. There the judg- 
ment of the state court was sustained ; it be- 
ing held that the lottery law did not control 
the laws of the States prohibiting the sale of 
the tickets. The chief interest of the case, 
however, depended on the question, whether 
the Supreme Court could take cognizance of 
it ; and it is with reference to that point that 
the opinion of the court is quoted. Chief Jus- 
tice Marshall said : — 

" It [the Supreme Court] is authorized to decide all 
cases of every description arising under the Constitu- 
tion or laws of the United States. From this general 



200 JOHN MARSHALL. 

grant of jurisdiction no exception is made of those 
cases in which a State may be a party. When we 
consider the situation of the government of the Union 
and of a State in relation to each other, the nature of 
our Constitution, the subordination of the state gov- 
ernments to that Constitution, the great purpose for 
which jurisdiction over all cases arising under the 
Constitution and laws of the United States is confided 
to the judicial department, are we at liberty to insert 
in this general grant an exception of those cases in 
which a State may be a party ? Will the spirit of the 
Constitution justify this attempt to control its words ? 
We think it will not. We think a case arising under 
the Constitution or laws of the United States is cogniz- 
able in the courts of the Union, whoever may be the 
parties to that case. The laws must be executed by 
individuals acting within the several States. If these 
individuals may be exposed to penalties, and if the 
courts of the Union cannot correct the judgments by 
which these penalties may be enforced, the course of 
the government may be at any time arrested by the 
will of one of its members. Each member will pos- 
sess a veto on the will of the whole. 

" That the United States form, for many and for 
most important purposes, a single nation has not yet 
been denied. These States are constituent parts of 
the United States. They are members of one great 
empire, for some purposes sovereign, for some pur- 
poses subordinate. In a government so constituted 
is it unreasonable that the judicial power should be 
competent to give efficacy to the constitutional laws 



CHIEF JUSTICE. 201 

of the legislature ? That department can decide on 
the validity of the Constitution or law of a State, if 
it be repugnant to the Constitution or to a law of the 
United States. Is it unreasonable that it should also 
be empowered to decide on the judgment of a state 
tribunal enforcing such unconstitutional law ? Is it 
so very unreasonable as to furnish a justification for 
controlling the words of the Constitution ? We think 
not. . . . The exercise of the appellate power over 
those judgments of the state tribunals which may 
contravene the Constitution or laws of the United 
States is, we believe, essential to the attainment of 
those objects." 



CHAPTER XI. 

TRIAL OF AAEON BUER FOE HIGH TEEASON. 
1806-1807. 

It was before Chief Justice Marshall that 
Aaron Burr, late Vice-President of the United 
States, was tried in the Circuit Court of the 
United States held in Richmond, Virginia, at 
the spring term of 1807. Burr was indicted 
for the crime of high treason, in levying war 
against the United States, and for a misde- 
meanor in preparing a military expedition 
against Mexico, then a territory of the King 
of Spain, with whom the United States was at 
peace. This event was the most remarkable 
and imposing of any which up to that time had 
marked the judicial annals of our country. 

Whatever may be thought of the guilt or in- 
nocence of the accused and of the real purpose 
of the organized expedition which was actually 
set on foot by him on the soil of the United 
States, whether it was designed to effect a dis- 
memberment of the American Union or only 
to wrest Mexico from Spain, the boldness of 



TRIAL OF AARON BURR. 203 

the enterprise, the ambition and ability of the 
leader, and the high rank and station of its al- 
leged friends and promoters invested the pro- 
ject with extraordinary interest. Burr had 
lately been a candidate for the Presidency of 
the United States, and had come within one 
electoral vote of being chosen. After a long 
struggle, which it is not necessary here to 
describe, Mr. Jefferson was elected President, 
and Burr became the Vice-President, and as 
president of the Senate he had so acquitted 
himself as to add to his already high reputa- 
tion. He stood well as a soldier by reason of 
his services in the war for independence ; and 
he was widely known as a successful and able 
lawyer. His conception, however, of the ethics 
of his practice may be inferred from his defi- 
nition of law, namely, " Whatever is boldly 
asserted and plausibly maintained." In short, 
in all the aspects of his public character he was 
astute, able, and accomplished. Although of 
small stature, he was remarkable in public life 
for the commanding dignity of his manners and 
his eloquent oratory, and in private, for an ease 
and gracefulness of demeanor which attracted 
the regards of men and dazzled and captivated 
the other sex. A contemporary historian ^ thus 
describes him : " He was brave, affable, munif- 
1 Safford, in his Life of Blennerhassett, pp. 71-182. 



204 JOHN MARSHALL. 

icent, of indomitable energy, of signal perse- 
verance. In his own person he combined two 
opposite natures. He was studious, but insinu- 
ating ; dignified, yet seductive ; success did not 
intoxicate, nor reverse dismay him. On the 
other hand, he was profligate in morals, public 
and private ; selfish and artful — a master in 
dissimulation, treacherous, cold-hearted, subtle, 
intriguing, full of promise, a skeptic in honesty, 
a scorn er of all things noble and good, from 
whom good men shrank in mistrust as from 
a cold and glittering serpent." His duel with 
Hamilton and its fatal end occurred on the 11th 
of July, 1804, while he was Vice-President, and 
proved the fruitful source of all the subsequent 
calamities, social, political, and personal, which 
marked him in after life as a doomed man, in 
spite of his gifts and accomplishments. The 
Federalists hated him for slaying their great 
leader, and the Republicans could not approve 
the manner of it, while they were further sus- 
picious and incensed against him by reason of 
warm and unfair competition with Mr. Jeffer- 
son for the Presidency. Burr, thus disowned 
and disliked by his former associates in New 
Jersey and New York especially, wdiere indict- 
ments were still pending against him, began 
naturally to regard himself as without home or 
country, and resolved to seek another sphere in 



TRIAL OF AARON BURR. 205 

which he should find new ties and a free scope 
for that restless ambition, which was the con- 
suming fever of his life. This opportunity 
seemed to open before him in the almost bel- 
ligerent relations now existing between Spain 
and the United States, growing out of the fre- 
quent incursions and hostile collisions between 
the citizens of these bordering territories, — 
the ''border ruffians" of that day, — and stimu- 
lated by the ardent desire of the Americans 
to drive Spain from all foothold on this con- 
tinent, and to get possession of the rich and at- 
tractive provinces of Mexico. The brilliantly 
successful career of Napoleon Bonaparte in Eu- 
rope, mounting then to the pinnacle of fame by 
the splendor of his genius in civil and military 
achievement, was generally supposed to fire 
Burr's ambition, and feed the dream of ro- 
mance which seemed to invite him to imitate 
such a career on the broad field of this Western 
Continent. To invade Mexico, and, like Cortes 
and his Castilians of old, to enrich themselves 
with wealth and booty and, in splendid luxury, 
to " revel in the halls of the Montezumas,* ' 
seemed a feasible scheme to bold and reckless 
men. Even some who had wealth and high 
social position were induced to contribute of 
their means to the military chest of a leader 
who had a singular power of attracting men. 



206 JOHN MARSHALL. 

In pursuance of his plans, which seemed all 
to point to the invasion and conquest of Mexico, 
Burr, with characteristic energy, set out in the 
spring of 1805 to the western country on a tour 
of inspection and preparation. He was inde- 
fatigable in pushing forward his schemes. The 
war with Spain, apparently imminent, might 
enable him to proceed without a violation of 
laws or treaties. The western men, in their • 
usual adventurous spirit, were ready to join in 
•an enterprise which promised such rich rewards, 
and which might, in due time, be openly favored 
by the national government. They so incited 
Burr that, although the probability of war be- 
tween Spain and the United States began to 
fade away, yet he none the less zealously pushed 
on his preparations. He contracted for the con- 
struction on the Ohio River of a large number 
of transports for his ''free companions," and 
designated Blennerhassett's Island, in the Ohio 
River, and within the jurisdiction of the State 
of Virginia, as a place of rendezvous for his east- 
ern followers, and as the main depot of stores 
and supplies. Here accordingly was actually 
assembled a force of some thirty or forty men, 
the nucleus of his future army, who came armed 
with guns and pistols, which were worn, accord- 
ing to the custom of that country, by all citi- 
zens when they went from home. To provide 



TRIAL OF AARON BURR. 207 

for the contingency of the failure of his Mex- 
ican project, and as an alternative refuge, Burr 
bought four hundred thousand acres of land 
on the banks of the Wichita River in Texas. 
This region he proposed to maintain and for- 
,tify. Thus he was enabled to offer his follow- 
ers the certainty of homes and rich lands, and 
to aif ord color to the pretension that his expe- 
dition was an agricultural and commercial en- 
terprise, and therefore, of course, peaceful. 

About this time Colonel Swartwout of New 
York, who seems to have been Burr's chief 
of staff, arrived in the camp of General Wilkin- 
son at Natchez, in Mississippi, bearing a letter 
in cipher from Burr to Wilkinson, in which 
Burr disclosed the particulars of the pending 
movement down the Ohio and Mississippi en 
route to New Orleans and thence to Mexico. 
Wilkinson and Burr had been comrades in the 
Revolutionary War, and had continued intimate 
and confidential friends. Burr had been Wil- 
kinson's guest on his recent visit to the West, 
and was supposed to have conferred with him 
fully as to his projects. At least from the tenor 
of this cipher and other letters it appeared 
that he believed that he had secured Wilkin- 
son's hearty cooperation. Wilkinson was at 
that time commander-in-chief of the United 
States army and military governor of the newly- 



208 JOHN MARSHALL. 

acquired territory of Louisiana. The letter, 
which was long, contained the following para- 
graphs : — 

" I, Aaron Burr, have obtained funds and have ac- 
tually commenced the enterprise. ... It will be a 
host of choice spirits. Wilkinson shall be second to 
Burr only. . . . Wilkinson shall dictate the rank and 
promotion of his officers. Burr will proceed west- 
ward by the first of August, nevermore to return. 
. . . Send forth ^n intelligent and confidential friend 
with whom Burr may confer. He shall return im- 
mediately with further interesting details. This is 
essential to concert and harmony of movement. . . . 

" Burr's plan is ... to be at Natchez between 
the 5th and 15th of December, there to meet Wilkin- 
son. . . . Draw on Burr for all expenses, etc. The 
people of the country to which we are going are 
prepared to receive us. Their agents, now with Burr, 
say that if we will protect their religion and will not 
subject them to a foreign power, in three weeks all 
will be settled." 

Wilkinson was greatly agitated by this letter, 
and seemed at first to hesitate as to his line of 
conduct. He had actually written and dis- 
patched a letter to Burr, in which he was sus- 
pected of having promised an active, even per- 
sonal cooperation in the enterprise. But, on 
second thought, he personally pursued and 
overtook the messenger, and intercepted and 
destroyed the letter. He then resolved to dis« 



TRIAL OF AARON BURR. 209 

close and denounce the whole scheme to the 
government, denominating it a treasonable con- 
spiracy to dismember the Union. Accordingly 
he forthwith sent one of his officers with the 
letter from Burr, duly interpreted from the 
cipher, accompanied by his own affidavit alleg- 
ing Burr's guilt. These he sent directly to 
President Jefferson. They were delivered on 
the 25th of November. Then came the explo- 
sion. On the 27th of November the President 
issued his proclamation denouncing the scheme 
of conspiracy, and sent it on the wings of the 
wind, filling the country with consternation 
and alarm, in consequence of the general belief 
that the conspiracy extended from one end of 
the Union to the other. It was remarkable, 
however, that Burr's name was not mentioned, 
either in Wilkinson's dispatch or Jefferson's 
proclamation. Wilkinson indeed expressly, 
though falsely, declared that he did not know 
who was the prime mover of the conspiracy. 
By some means, it was soon after reported and 
known that it was an expedition of Colonel 
Burr against which the proclamation was lev- 
eled. 

Wilkinson immediately seized Swartwout, 
Bollman, Ogden, and General Adair of Ken- 
tucky, as emissaries of Burr, and sent them 
vmder guard to Washington. A large reward 

14 



210 JOHN MARSHALL. 

was offered for the arrest of Burr, who there- 
upon voluntarily came forward before the 
United States courts and demanded a trial. 
But no judge would commit him and no grand 
jury would indict him, there being no evidence 
of treasonable designs. He resolved, however, 
to make his way to Pensacola, where he hoped 
to meet a British man-of-war on which he 
might take refuge. In this effort he was ar- 
rested in Alabama by Major Perkins and hur- 
ried forward to Virginia under a small military 
escort, without being offered any opportunity 
of bringing his case before the courts, which 
had, so far, afforded him immunity. He arrived, 
in this way, at Richmond on the 26th of March, 
1807, and was taken to the Eagle Hotel, still 
under guard, and brought before Chief Justice 
Marshall for examination preliminary to com- 
mitment, which was strenuously opposed by 
Burr and his counsel. After an examination 
and arguments, which consumed three days, the 
Chief Justice decided to commit the prisoner on 
the charge of misdemeanor for having set on 
foot a military expedition against Mexico, then 
part of the dominions of the King of Spain, 
with whom the United States was at peace. 
The charge of high treason was reserved for 
investigation by the grand jury. Thus Burr 
was freed from any immediate risk of imprison* 



TRIAL OF AARON BURR. 211 

ment, and being entitled to bail, five gentlemen 
of Richmond gave bail bonds in the sum of ten 
thousand dollars for his appearance at the en- 
suing May term of the United States court ; 
whereupon he was discharged from custody. 

On the opening of the court on the 22d of 
May, 1807, the accused promptly appeared, at- 
tended by his counsel. These were Edmund 
Randolph, a learned, experienced, and able law- 
yer, who had been Attorney General and Secre- 
tary of State under Washington, and Governor 
and Attorney General of Virginia ; John Wick- 
ham, a man of learning, wit, eloquence, logic, 
and sarcasm, of a fine presence and persuasive 
manner, perhaps the ablest lawyer then prac- 
ticing at the Richmond bar ; Benjamin Botts, 
though a young man, already distinguished; 
Charles Lee, formerly Attorney General of 
the United States, and John Baker, familiarly 
called " Jack " Baker, a useful man in such a 
position, and a popular favorite on account of 
his social qualities. These were supplemented, 
later on in the trial, by Luther Martin of Mary- 
land. Burr himself, however, was undoubtedly 
the leader in the defense. His long and suc- 
cessful practice at the bar had lade him per- 
fectly at home in a court-room and such was 
his self-possession, his calm dignity, and his 
immovable composure that he never lost his 



212 JOHN MARSHALL. 

temper, nor was betrayed into mistakes. His 
speeches were short, but concise, and alwa3^s 
to the point, and with the law on his side, and 
before a firm and fearless judge, he was equal to 
all the demands of the situation. Richmond, 
then a town of six thousand inhabitants, was 
crowded with visitors. Throngs of citizens, not 
only from Virginia, but from other States, were 
drawn thither by the celebrity of the occasion, 
and to witness the opening scenes of the most 
noteworthy trial which had yet marked the 
history of the Republic. Including lawyers 
from abroad, jurymen, and witnesses, it was es- 
timated that not less than two hundred persons 
were in Richmond who had some official con- 
nection with the trial. The government, as 
prosecutor, was ably represented by George 
Hay, United States District Attorney ; Alex- 
ander McCrae, an experienced and able lawyer 
of the Richmond bar, then Lieutenant - Gov- 
ernor of the State ; and, on the special retainer 
of President Jefferson, by the gifted, accom- 
plished, and eloquent William Wirt, then rising 
to the zenith of forensic fame. The court con- 
sisted of two judges ; John Marshall, Chief 
Justice of the Supreme Court of the United 
States ; and Cyrus Griffin, Judge of the Dis- 
trict Court of Virginia. 

When the grand jury were called, before 



TRIAL OF AARON BURR. 213 

whom the indictment was to be laid, it soon 
became evident that there had been a very ex- 
tensive prejudgment of the case in the public 
mind; for almost all the jurors, on being inter- 
rogated, admitted that the proclamations of the 
President and the depositions of General Eaton 
and General Wilkinson bad strongly impressed 
them against the prisoner. The panel of the 
grand jury which had been returned by the 
marshal presented a list of the most intelli- 
gent, upright, and honorable citizens of the 
State. No grand jury was ever convened in Vir- 
ginia or elsewhere, composed of men of supe- 
rior character and intelligence. After a very 
thorough sifting of the original panel, and the 
selection of substitutes for those who had been 
withdrawn or excused, the requisite number 
was at last obtained and sworn. John Ran- 
dolph of Roanoke, then in the prime of his 
powers, in spite of his request to be excused., 
was made the foreman. 

Although so long an interval as two months 
had elapsed between the examination of Burr 
before the Chief Justice at Richmond in the 
preceding month of March and the meeting of 
the court on the 22d of May, it was found that 
little progress could be made in the trial until 
the arrival of General Wilkinson, the chief 
government witness, then in New Orleans. He 



214 JOHN MARSHALL. 

had been summoned, but did not present him- 
self until the twenty-fourth day of the term. 
During this interval several motions prelimin- 
ary to the trial were made, and argued before 
the court. One was presented by Colonel Burr 
himself, asking the court to instruct the grand 
jury as to the rule of admissibility of evidence 
before them. Another was by Mr. Hay, the 
district attorney, to commit the prisoner to 
close custody to answer the charge of treason 
now preferred in the indictment prepared for 
the grand jury. On these motions the court de- 
livered brief opinions overruling both. Refer- 
ring to Hay's motion to commit the prisoner to 
jail without bail on the charge of treason, the 
court held that the charge could not be enter- 
tained except on proof, in the first instance, 
that war had been actually levied, and that 
some overt act of treason had been actually 
committed by the prisoner ; that treason was 
declared in the Constitution " To consist only 
in levying war against the United States, or in 
adhering to their enemies, giving them aid and 
comfort ; " also, " that no person shall be con- 
victed of treason, unless on the testimony of two 
witnesses to the same overt act, or on confes- 
sion in open court." It was fortunate for Colo- 
nel Burr, and for the cause of law and public 
justice as well, that the American people had 



TRIAL OF AARON BURR. 215 

oeen warned by the fate of so many martyrs 
and patriots, who had perished innocently on 
the scaffold in consequence of loose charges and 
vague definitions of treason made by the courts 
under the unwritten law of former times, and 
that, thus admonished, they had distinctly en- 
acted in the Constitution that the crime should 
consist only in acts, and not in intentions and 
designs. The temper and aim of Marshall in 
the conduct of the cause appear in his own 
words : — 

" That this court," said he, " dares not usurp power 
is most true. That this court does not shrink from 
its duty is not less true. No man is desirous of plac- 
ing himself in a disagreeable situation. No man is 
desirous of becoming the peculiar subject of calumny. 
No man, might he let the bitter cup pass from him 
without reproach, would drain it to the bottom. But 
if he has no choice in the case, if there is no alter- 
native presented to him but a dereliction of duty or 
the opprobrium of those who are denominated the 
world, he merits the contempt as well as the indigna- 
tion of his country, who can hesitate which to em- 
brace.'* 

He did not mean to accept the judgment of 
the prejudiced public as the judgment of his 
court. 

It was also in this stage of the case, while 
the court was awaiting the coming of General 



216 JOHN MARSHALL. 

Wilkinson, who was expected daily, that Colo- 
nel Burr, alleging that he had exhausted other 
means to procure certain papers which he 
deemed material for his defense, and which 
were in the possession, or under control of the 
executive department at Washington, copies 
of which had been refused him, moved the 
court for a subpoena duces tecum., to be directed 
to the United States marshal, commanding him 
to summon Thomas Jefferson, President of the 
United States, to appear before the court and 
bring with him, according to the exigency of 
the precept, the papers desired and designated 
in the prisoner's affidavit filed, especially the 
letter of General Wilkinson to the President, 
dated the 21st of October, 1806, and addressed 
directly to him. This motion was vehemently 
opposed by the counsel for the government, 
who alleged that it was wholly unnecessaiy, 
without any precedent, inconsistent with the 
President's official position and duties, and that 
it only tended, if it was not deliberate!}^ de- 
signed, to disparage and affront him. It elic- 
ited a warm discussion before the court, which 
consumed several days. After full argument, 
the Chief Justice delivered the opinion sustain- 
ing the motion. Some extracts from this opin- 
ion will develop the reasoning on which his con- 
clusion rested. 



TRIAL OF AARON BURR. 217 

"This point being disposed of, it remains," he 
said, " to inquire whether a subpoena daces tecum can 
be directed to the President of the United States, 
and whether it ought to be directed in this case ? 

" This question originally consisted of two parts. 
It was at first doubted whether a subpoena could is- 
sue in any case to the chief magistrate of the nation ; 
and if it could, whether that subpoena could do more 
than direct his personal attendance ; whether it could 
direct him to bring with him a paper which was to 
constitute the gist of his testimony. While the ar- 
gument was opening, the attorney for the United 
States avowed his opinion that a general subpoena 
might issue to the President, but not a subpcena 
duces tecum. This terminated the argument on that 
part of the question. . . . 

" In the provisions of the Constitution and of the 
statute which give to the accused a right to the com- 
pulsory process of the court, there is no exception 
whatever. The obligation therefore of those provis- 
ions is general, and it would seem that no person 
could claim an exemption from them but one who 
would not be a witness. At any rate, if an exception 
to the general rule exist, it must be looked for in the 
law of evidence. The exceptions furnished by the law 
of evidence (with one only reservation), so far as they 
are personal, are of those only whose testimony could 
not be received. The single reservation alluded to is 
the case of the King. Although he may perhaps give 
testimony, it is said to be incompatible with his dig- 
nity to appear under the process of the court. Of 



218 JOHN MARSHALL. 

tlie many points of difference which exist between the 
first magistrate in England and the first magistrate 
in the United States, in respect to the personal dig- 
nity conferred on them by the constitutions of their 
respective nations, the court will only select two. 

" It is a principle of the English Constitution that 
the King can do no wrong, that no blame can be im- 
puted to him, that he cannot be named in debate. 

" By the Constitution of the United States, the 
President, as well as every officer of the government, 
may be impeached and may be removed from office 
for high crimes and misdemeanors. 

" By the Constitution of Great Britain, the crown 
is hereditary and the monarch can never be a sub- 
ject. 

" By that of the United States, the President is 
elected from the mass of the people ; and, on the ex- 
piration of the time for which he is elected, returns 
to the mass of the people again. 

" How essentially this difference of circumstances 
must vary the policy of the laws of the two countries, 
in reference to the personal dignity of the chief Ex- 
ecutive, will be perceived by every person. In this 
respect, the first magistrate of the Union may more 
properly be likened to the first magistrate of a State ; 
at any rate, under the former confederation. And it 
is not known ever to have been doubted but that the 
chief magistrate of a State might be served with a 
subpoena ad testificandum. 

" If in auy court of the United States it has ever 
been decided that a subpoena cannot issue to the 
President, that decision is unknown to this court. 



TRIAL OF AARON BURR. 219 

" If upon any principle the President could be con- 
strued to stand exempt from the general provisions 
of the Constitution, it would be because his duties as 
chief magistrate demand his whole time for national 
objects. 

" But it is apparent that this demand is not unre- 
mitting ; and if it should exist at the time when his 
attendance on the court is required, it would be sworn 
on the return of the subpoena, and would rather con- 
stitute a reason for not obeying the process of the 
court, than a reason against its being issued. ... It 
cannot be denied, that to issue a subpoena to a per- 
son filling the exalted station of chief magistrate 
is a duty which would be dispensed with much more 
cheerfully than it would be performed. But if it be 
a duty, the court can have no choice in the case. . . . 
1 " If, then, as is admitted by the counsel for the 
United States, a subpoena may issue to the Presi- 
1 dent, the accused is entitled to it, of course ; and 
^ whatever difference may exist with respect to the 
power to compel the same obedience to the process 
as if it had been directed to a private citizen, there 
exists no difference with respect to the right to ob- 
tain it. The guard furnished to this high officer to 
protect him from being harassed by vexatious and 
I unnecessary subpoenas is to be looked for in the con- 
I duct of the court, after those subpoenas had issued, not 
! in any circumstance which is to precede their being 
issued. If in being summoned to give his personal 
attendance to testify the law does not discriminate 
between the President and a private citizen, what 



J 



220 JOHN MARSHALL. 

foundation is there for the opinion, that this difference 
is created by the circumstance that his testimony 
depends on a paper in his possession, not on facts 
which have come to his knowledge otherwise than by 
writing ? The court can perceive no foundation for 
such an opinion. The propriety of introducing any 
paper into a case as testimony must depend on the 
character of the paper, not on the character of the 
person who holds it. A subpoena duces tecum, then, 
may issue to any person to whom an ordinary sub- 
poena may issue, directing him to bring any paper of 
which the party prayiug has the right to avail himself 
as testimony, if, indeed, that be the necessary process 
of obtaining such paper. 

" When this subject was suddenly introduced, the 
court felt some doubt concerning the propriety of 
directing a subpoena to the chief magistrate, and some 
doubt also concerning the propriety of directing any 
paper in his possession, not public in its nature, to be 
exhibited in court. The impression that the questions 
which might arise, in consequence of such process, 
were more proper for discussion on the return of the 
process than on its issuing, was then strong on the 
minds of the judges ; but the circumspection with 
which they would take any step which would in any 
manner relate to that high personage prevented their 
yielding readily to those impressions, and induced 
the request that those points, if not admitted, might 
be argued. The result of that argument is a con- 
firmation of the impression originally entertained. 
The court can perceive no legal objection to issuing 



TRIAL OF AARON BURR. 221 

a subpoena duces tecum to any person whomsoever, 
provided the case be such as to justify the pro- 
cess. . . . 

" The court would not lend its aid to uiotions ob- 
viously designed to manifest disrespect to the govern- 
ment ; but the court has no right to refuse its aid to 
motions for papers, to which the accused may be en- 
titled, and which may be material in his defense. . . . 

" Much has been said about the disrespect to the 
chief magistrate which is implied by this motion, and 
by such a decision of it as the law is believed to re- 
quire. 

" These observations will be very truly answered 
by the declaration that this court feels many, per- 
haps peculiar motives, for manifesting as guarded a 
respect for the chief magistrate of the Union as is 
compatible with its official duties. To go beyond 
these would exhibit a conduct which should deserve 
some other appellation than the term respect. 

" It is not for the court to anticipate the event of 
the present prosecution. Should it terminate, as is 
expected, on the part of the United States, all those 
who are concerned in it would certainly regret thai 
a paper, which the accused believed to be essentia^- 
to bis defense, which may, for aught that now ap- 
pears, be essential, had been withheld from him. I 
will not say that this circumstance would in any de- 
gree tarnish the reputation of the government, but I 
will say that it would justly tarnish the reputation of 
the court which had given its sanction to its being 
withheld. Might I be permitted to utter one senti- 



222 JOHN MARSHALL. 

ment with respect to myself, it would be to deplore 
most earnestly the occasion which should compel me 
to look back on any part of my official conduct with 
so much self-reproach as I should feel, could I de- 
clare, on the information now possessed, that the 
accused is not entitled to the letter in question, if it 
should be really important to him." ^ 

We have been led to present so much of the 
ruling of the Chief Justice as will suffice to in- 
form the reader of the ground of his conclu- 
sion, because, at the time, this ruling was bit- 
terly arraigned and some modern authors have 
warmly dissented from it. Probably many of 
these critics have only followed the authority 
of President Jefferson, who had the bad taste 
and bad temper to denounce the opinion as an 
offensive trespass on the executive department 
of the government. 

Mr. Parton tells us that Mr. Jefferson was dis- 
gusted with the motion, disgusted with the de- 
bate, and disgusted with the decision. ^ " Shall 
we move," Jefferson wrote to Mr. Hay, " to 
commit Luther Martin as particeps eriminis 
with. Burr ? Grayball will fix upon him mis- 
prision of treason, at least ; and, at any rate, 
his evidence will put down this unprincipled 
and impudent federal bull-dog, and add another 

1 Burr's Trial, vol. i. pp. 182, 183, 187, 188. 

2 Parton's Life of Burr, p. 474. 



TRIAL OF AARON BURR. 223 

proof that the most clamorous defenders of 
Burr are all his accomplices. It will explain 
why Luther Martin flew so hastily to the 'aid 
of his honorable friend,' abandoning his clients 
and their property during a session of a princi- 
pal court of Maryland, — now filled, as I am 
told, with the clamors and ruin of his clients." 
The indignant President promptly and emphat- 
ically denied the power of the court to require 
his attendance as a witness. "The Constitu- 
tion," he wrote, "enjoins the President's agency 
in the concerns of six millions of people. Is 
the law paramount to this, which calls on him 
on behalf of a single one ? Let us apply the 
judge's own doctrine to the case of himself and 
his brethren. The sheriff of Henrico — Judge 
Marshall's residence — summons him from the 
bench to quell a riot somewhere in his county. 
The federal judge is by the general law a part 
of the posse of the state sheriff. Would the 
judge abandon major duties to perform lesser 
ojies ? " 

This letter shows the personal animus that 
inspired Mr. Jefferson's active interest in the 
trial at Richmond. It shows who was the real 
prosecutor of the prisoner, and who stimulated 
the zeal and the eloquence of those who were 
conducting the prosecution. It seems, from a 
careful inspection of the court's opinion, that 



224 JOHN MARSHALL, 

Chief Justice Marshall's plain duty, under the 
Constitution and the laws of the land, was to 
direct the subpoena duces tecum to issue, and to 
leave to the President on his part, as a coordi- 
nate branch of the government, the option of 
obeying the precept or of setting forth, in re- 
sponse to the process, the reasons for his failure 
or refusal to do so, of the sufficiency of which 
he must ultimately be, of necessity, the sole 
judge ; for it was not supposed that any author- 
ity could compel his attendance. The opinion 
expressly declared that it would be only on the 
return of the process that questions might arise 
affecting its enforcement by any means in the 
power of the court ; as to which, however, the 
court for the present declined to express any 
opinion as coram nan judice. This essential 
part of the opinion the President, in his haste 
to condemn tlie court, seems to have wholly 
overlooked. 

This ruling of the Chief Justice, it should 
be observed, seems to have been in harmony 
to this day with the practice which prevails in 
the legislative department, in calls which Con- 
gress may make, by resolution, on the Presi- 
dent to furnish papers, documents, etci, in the 
executive departments, for their information. 
Such calls are always qualified by the proviso 
that the communication of the same be not, iu 



TRIAL OF AARON BURR. 225 

his opinion, incompatible with the public in- 
terest. But the similarity is in spirit only; 
for the calls of Congress are requests, whereas 
the subpoena is in terms an order ; and indeed 
a chief criticism was that the court put itself 
in a false position by issuing an order which it 
would probably be wholly in(5ompetent to en- 
force. 

The subpoena was sent accordingly, and in a 
few days the designated papers were transmit- 
ted to the court through the district attorney, 
and were used by the prisoner on his trial. 

General Wilkinson, having at length arrived, 
was sent before the grand jury, who, after sev- 
eral days' deliberation and after examination 
of many witnesses, appeared in court and found 
" a true bill " on each of the indictments. The 
prisoner was then ' ordered into close custody, 
and the jail of the city proving to be an un- 
healthy asylum, he was soon, on the offer of 
the governor to the court, furnished with more 
suitable rooms at the State Penitentiary, to 
which his counsel and visiting friends had free 
access. 

At length, after fourteen days spent in ef- 
forts to secure an impartial jury, and many 
challenges and much and able discussion as to 
their eligibility, a petit jury of twelve good men 
was chosen. The prisoner pleaded not guilty* 

15 



226 JOHN MARSHALL. 

Early in the trial the prisoner's counsel moved 
the court to instruct the jury as to the law of 
treason and as to the preliminary proof of the 
overt act, in order to limit or exclude irrelevant 
testimony. After examination of many wit- 
nesses and full argument of counsel the Chief 
Justice expounded the law in these terms : — 

" The whole treason laid in this indictment is the 
levying of war on Blennerhassett's Island ; the whole 
question to which the inquiry of the court is now di- 
rected is whether the prisoner was legally present at 
that fact. I say this is the whole question, because 
the prisoner can only be convicted on the overt act 
laid in the indictment. With respect to this prosecu- 
tion it is as if no other overt act existed. If other 
overt acts can be inquired into, it is for the sole pur- 
pose of proving the particular fact charged ; it is as 
evidence of the crime consisting of this particular 
fact, not as establishing the general crime by a dis- 
tinct fact. If the assemblage on Blennerhassett's 
Island was an assemblage in force, was a military as- 
semblage, in a condition to make war and having a 
treasonable object, it was in fact a levying of war, 
and consequently treason. But, as the accused was 
not present and performing a part as charged, evi- 
dence of his acts elsewhere was irrelevant. In other 
words, the indictment charged him with actually levy- 
ing war on Blennerhassett's Island, and therefore 
could not be supported by evidence which showed 
that he was actually absent from the scene of action. 



TRIAL OF AARON BURR. 227 

In short, that the government could not state one 
case and prove a very different one, or charge the 
prisoner with aiding in one transaction and prove 
him to be actually employed in another. If the pris- 
oner advised, procured, or commanded the treason- 
able act, though this might not amount to treason 
under the Constitution of the United States, yet the 
indictment should have charged him with what he 
actually did, and the evidence should conform to the 
charge. . . . An assemblage, to constitute an actual 
levying of war, should be an assemblage with such 
force as to justify the opinion that they met fo^ the 
purpose. Why is an assemblage absolutely required ? 
Is it not to judge, in some measure, of the end by 
the proportion which the means bear to the end? 
Why is it that a single armed individual entering a 
boat and sailing down the Ohio for the avowed pur- 
pose of attacking New Orleans could not be said to 
levy war ? Is it not that he is apparently not in a 
condition to levy war? If this be so, ought not the 
assemblage to furnish some evidence of its intention 
and capacity to levy war, before it can amount to 
\e vying war?" 

As to the point made by the prosecution, that 
the accused, though personally absent, was con- 
structively present, and must, therefore, be held 
responsible, the court said : — 

" If the accused, though he had not arrived in the 
island, had taken a position near enough to cooperate 
with those on the island, to assist them in any act of 



228 JOHN MARSHALL. 

hostility, or to aid them if attacked, he then might 
have been constructively present, and this would have 
been a mixed question of law and fact for the jury, 
with the aid of the court, to decide. ... It is then 
the opinion of the court that this indictment can be 
supported only by testimony which proves the ac- 
cused to have been actually or constructively present 
when the assemblage took place on Blennerhassett's 
Island, or by the admission of the doctrine that he 
who procures an act may be indicted as having per- 
formed that act. It is further the opinion of the 
court that there is no testimony whatever which 
tends to prove that the accused was actually or con- 
structively present, when that assemblage did take 
place. Indeed the contrary is most apparent. With 
respect to admitting proof of procurement to establish 
a charge of actual presence, the court is of opinion 
that if this be admissible in England on an indict- 
ment for levying war, which is far from being con- 
ceded, it is admissible only by virtue of the operation 
of the common law upon the statute, and therefore is 
not admissible in this country unless by virtue of a 
similar operation ; a point far from being established, 
but on which, for the present, no opinion is given. If, 
however, this point be established, still the procure- 
ment must be proved in the same manner and by the 
same kind of testimony which would be required to 
prove actual presence. If those who perpetrated the 
fact be not traitors, he who advised the fact cannot 
be a traitor. . . . His guilt, therefore, depends on 
theirs, and their guilt cannot be legally established in 



TRIAL OF AARON BURR. 229 

a prosecution against him. Now an assemblage on 
Blennerhassett's Island is proved by the requisite 
number of witnesses, and the court might submit it to 
the jury whether that assemblage amounted to a levy- 
ing of war ; but the presence of the accused at that 
assemblage being nowhere alleged except in the in- 
dictment, the overt act is not proved by a single wit- 
ness, and of consequence all other testimony must be 
irrelevant." 

Under the influence of this opinion of the 
court on the law of the case, the jury brought 
in a verdict of " not guilty." The prisoner was 
then arraigned upon an indictment for the mis- 
demeanor ; but as the evidence also failed to 
support that charge, the verdict of the jury was 
again " not guilty ; " whereupon Burr was finally 
set at liberty, but was required to enter into bail 
to appear at the ensuing United States court in 
Ohio to answer to any indictment that might 
be preferred against him for the offense com- 
mitted in that State of conspiring to invade the 
Spanish territory of Mexico. He gave the re- 
quisite bail, and was again discharged. This 
proved, however, to be the end of the prosecu- 
tion. United States Attorney Hay announcing 
in open court that he would recommend the 
executive department to desist from any fur- 
ther pursuit of the merely formal case that 
now remained. 



230 JOHN MARSHALL. 

Thus ended a state trial, the most famous 
which took place in the United States prior to 
the impeachment of President Johnson. It 
could have had no other conclusion in accord- 
ance with law. Whether Burr was morally- 
guilty was a question which has been since so 
much discussed that it cannot be regarded as 
having been settled by the verdict ; but that 
he was not legally proved to be guilty is certain. 
The duty of holding the scales of justice even 
at this trial was the most difficult that Marshall 
had to encounter during his incumbency on the 
bench. Jefferson succeeded in importing so 
much personal feeling and partisanship into the 
proceedings that the trial wore a very peculiar 
aspect. There was more in it than party hos- 
tility ; there was open antagonism between the 
President of the United States and the Chief 
Justice; there were also covert and indirect 
but powerful influences at work in aid of the 
prosecution. No action of Marshall could have 
escaped contemporary criticism, and in this case 
he did not escape it. He was very severely at- 
tacked by many persons, who honestly thought 
that he had done wrong. But the fairer judg- 
ment of posterity has given him credit for per- 
fect impartiality, and for sound, even-handed, 
and courageous administration of the law. The 
issuing of the subpoena to Jefferson alone re- 



TRIAL OF AARON BURR. 231 

mains a controverted point ; yet as to this it 
must be admitted tliat no authority can be 
higher or more satisfactory than that of the 
Chief Justice himself. 



CHAPTER XII. 

THE "LIFE OF WASHINGTON." 

1800-1806. 

General Washington died on the 14tli of 
December, 1799. By his will, he bequeathed his 
large collection of valuable papers, private and 
public, to his nephew. Judge Bushrod Wash- 
ington. The latter, by much solicitation, in- 
duced Judge Marshall to write from these 
manuscripts the life of Washington. This 
work, extending, as it did, over more than the 
previous half century, the most stirring and 
eventful period of modern history, and filled 
with events of the most imposing character, 
necessarily comprised the history of the United 
States, as well as all the military and civil 
events leading to the national existence. So 
much material could not be compressed into 
moderate limits within a short period. The con- 
tract with the publishers to prepare and print 
the work was dated September 22, 1802, yet 
four of the five octavo volumes of the work were 
prepared in manuscript for the press by the 



TEE ''LIFE OF WASHINGTON.'' 233 

aatiimn of 1804. The first volume was placed 
in the printer's hands in the winter of 1804, and 
was actually published in that year. Yet even 
this dispatch did not satisfy people at the time. 
Indeed, such was the public eagerness for the 
book that it was actually looked for before one 
page was printed. 

Several causes conspired to induce this an- 
ticipation. Mr. Jefferson, with characteristic 
jealousy, and in his eager anxiety to forestall 
any impressions which the publication might 
create adverse to his elevation to the presidency 
at the next election, — an idea that never en- 
tered the mind of Judge Marshall, — sounded 
the alarm to his political followers by condemn- 
ing the work in advance ; and in his busy cor- 
respondence he even covertly imputed these 
partisan motives for its early publication. 
Among his published letters of that date, two 
years before Marshall's first volume appeared, 
there is one to his friend Joel Barlow, the au- 
thor of the " Columbiad,'* who was then re- 
siding at Paris ; to him Jefferson writes : — 

" Mr. Madison and myself liave cut out a piece of 
work for you, which is to write the history of the 
United States from the close of the war downwards. 
We are rich ourselves in materials, and can open all 
the public archives to you ; but your residence here is 
essential, because a great deal of the knowledge of 



234 JOHN MARSHALL. 

things is not on paper, but only within ourselves for 
verbal communication. John Marshall is writing the 
life of General Washington from his papers. It is 
intended to come out just in time to influence the 
next presidential election. It is written, therefore, 
principally with a view to electioneering purposes. 
It will consequently be out in time to aid you with 
information, as well as to point out the perversions of 
truth necessary to be rectified. Think of this and 
agree to it." ^ 

These assertions and these possibly genuine 
apprehensions of Jefferson were without tlie 
least foundation. Judge Washington wrote to 
Wayne, the publisher, in reference to this sus- 
picion, as follows : — 

" The Democrats may say what they please, and I 
have expected they would say a great deal, but this 
is, at least, not intended to be a party work, nor will 
any candid man have cause to make this charge." 

The tocsin of alarm, however, thus sounded 
by Mr. Jefferson, produced an unfavorable in- 
fluence in the canvass for subscriptions, and 
combined with the high cost of the volumes to 
repress the circulation. Judge Washington had 
anticipated thirty thousand subscribers by the 
time the first volume went to press. Th-^ num- 
ber actually obtained did not exceed eight 
thousand. 

1 Jefferson's Works, vol. iv. p. 437. 



THE ''LIFE OF WASHINGTON:* 235 

It must be confessed that, whether because he 
was too much hurried by outside pressure or 
for some other reason, Marshall did not give 
himseK time to do his work as he might and 
ought to have done it. The book suffered from 
haste. The early volumes had an appearance 
of incompleteness which impaired their value 
to a degree which, when too late, became mor- 
tifying to the author. He, however, frankly 
acknowledged the justice of this complaint. 
In the preface to his revised and smaller edi- 
tion in two volumes, he says : — 

" The work was originally composed under cir- 
cumstances which might afford some apology for its 
being finished with less care than its importance de- 
manded. The immense mass of papers which it was 
necessary to read — many of them interesting when 
written, but no longer so — occupied a great part of 
that time which the impatience of the public could 
allow for the appearance of the book itself. It was 
therefore hurried to the press without that previous 
careful examination which would have resulted in 
the correction of some faults that have been since 
perceived. In the hope of presenting the work to 
the public in a form more worthy of its acceptance 
and more satisfactory to himself, the author has given 
it a careful revision." 

Such was the innate modesty of Marshall 
that he did not intend that his name as author 



236 JOHN MARSHALL. 

should appear, preferring the mere announce- 
ment, '' Compiled under the inspection of the 
Honorable Bushrod Washington from original 
papers bequeathed to him by his deceased rel- 
ative." In a letter to Wayne, the publisher, 
he says : — 

" My repugnance to permitting my name to appear 
in the title still continues, but it shall yield to your 
right to make the best use you can of the copy. I 
do not myself imagine that the name of the author 
being given or withheld can produce any difference 
in the number of subscribers ; but if you think dif- 
ferently, I should be very unwilling, by a pertina- 
cious adherence to what may be deemed a mere 
prejudice, to leave you in the opinion that a real in- 
jury has been sustained. I have written to Mr. 
Washington on this subject, and shall submit my 
scruples to you and him, only requesting my name 
may not be given. But, on mature consideration and 
conviction of its propriety, if this shall be ultimately 
resolved on, I wish not my title in the judiciary of 
the United States to be annexed to it." 

The question thus submitted to Judge Wash- 
ington was promptly decided. '^ The Chief 
Justice," he says, in a letter to Wayne, " with 
great reluctance consents that his name as 
author may be inserted in the title-page, pro- 
vided I insist upon it. It gives me pain to 
decide against his wishes, but I really think ife 



THE ''LIFE OF WASHINGTON.'' 237 

necessary, for many reasons. It will, I presume, 
be sufficient to say, ' By John Marshall.' " 

The first volume of the work met with the 
usual varied fortune of commendation and crit- 
icism from the public and the press. 

In a letter to Wayne, Marshall says : — 
" I thank you for the two papers you sent me. The 
very handsome critique in ' The PoHtical and Com- 
mercial Register ' was new to me. I could only re- 
gret that there was in it more of panegyric than was 
merited. The editor of that paper, if the author 
of the critique, manifests himself to he master of a 
style of very superior order, and to be, of course, a 
very correct judge of the compositions of others. 
... I cannot be insensible of the opinions entertained 
of it, but I am much more solicitous to hear the 
strictures upon it than to know what parts may be 
thought exempt from censure. As I am about to 
give a reading to the first volume, and as not much 
time can be employed upon it, the strictures of those 
who were either friendly or hostile to the work may 
be useful, if communicated to me, because they may 
direct my attention to defects which might otherwise 
escape a single reading, however careful that reading 
may be." 

The American press in general spoke favor- 
ably of the work as to its accuracy and com- 
pleteness. Judge Story said: " It could scarcely 
be doubted that his ' Life of Washington ' 
would be invaluable for the truth of its facts 



238 JOHN MARSHALL. 

and the accuracy and completeness of its nar- 
rative, and such has been and will continue to 
be its reputation."^ Jared Sparks said : " After 
the able, accurate, and comprehensive work 
by Chief Justice Marshall it would be pre- 
sumptuous to attempt a historical biography 
of Washington." ^ Washington Irving said of 
it: "Marshall and Sparks are very accurate. 
Whoever will read the Life by Marshall and 
the Correspondence by Sparks will have a good 
idea of Washington." 

As to the reception of the work in Great 
Britain it was hardly to be expected, so soon 
after the Revolutionary War, that English crit- 
icism of such a book should be entirely free 
from prejudice. The smart of defeat in the 
successful revolt of the colonies against the 
mother country was still recent, and rankled in 
many a British breast. This naturally inspired 
the harsh spirit in which the book was re- 
viewed in that country. In presenting some ex- 
tracts from these reviews we forgive, therefore, 
the bad taste of ungenerous and spiteful crit- 
icism, in consideration of the honest admission 
of the fullness and truth of the biography as a 
faithful historical narrative. 

1 National Portrait Gallery, vol. L 

2 Allibone's Dictionary of Authors. 



THE ''LIFE OF WASHINGTON^ 239 

We quote from the " Edinburgh Review " 
of October, 1808, as follows : — 

*^ If we are to regard the history of a good man's 
life as a monument which literature erects to his 
memory, and consider the magnitude of the intel- 
lectual structure as sufficient to insure its celebrity 
dnd duration, the Chief Justice of America must 
certainly be allowed to have graced the fields of lit- 
erature with one of the most promising trophies ever 
employed to commemorate the illustrious dead. But 
mere bulk, we suspect, gives no durable quality to 
works made of words, and it is not by the space they 
cover that they are likely to attract the notice of 
mankind. Mr. Marshall must not, therefore, promise 
himself a reputation commensurate with the dimen- 
sions of his work, for we are greatly afraid that it 
may come to be superseded, and the name of Wash- 
ington carried down to posterity by some less osten- 
tatious, but more tasteful and pleasing memorial." 

In an article in " Blackwood's Magazine " en- 
titled " American Writers," ^ we read : — 

" * Washington's Life,' " so called, is a great, heavy 
book that should have been called by some other 
name. As a lawyer, as a judge, whose decisions, 
year after year, in the Supreme Court of the United 
States would have done credit and honor to West- 
minster Hall in the proud season of English law, 
we must, we do, revere Chief Justice Marshall. But 
1 Nos. 4 and 5, vol. xvii. pp. 57, 187. 



240 JOHN MARSHALL. 

we cannot — will not — forgive such a man for liav 
ing made such a book about such another man as, 
George Washington. Full of power, full of truth as 
the work undoubtedly is, one gets tired and sick of the 
very name of Washington before he gets half through 
these four [five] prodigious octavos, which are equal 
to about a dozen of our fashionable quartos, — and 
all this without finding out by them who Washington 
was or what he has done. . . . Insupportably tire- 
some, and with all his honesty, care, and sources of 
information from the papers of Washington, he is 
greatly mistaken several times in matters of impor- 
tance." 

In honesty it must be admitted that the cen- 
sorioiisness of the English critics came nearer 
to the truth than the friendly and courteous 
compliments of the popular author's country- 
men. In the first place, the time had not 
come when the life of Washington could be 
properly written, so far at least as his admin- 
istrations as President were concerned. The 
questions which had then arisen were too near ; 
the partisanship was as fresh and as strong as 
ever ; and even the judicial mind of Marshall 
could not escape such powerful present influ- 
ences. Neither was Marshall altogether fitted 
to write a great book ; he was not a literary 
man nor a scholar; he did not understand the 
art of composition, and of making a vivid, con- 



THE ''LIFE OF WASHINGTON.'' 241 

densed, attractive narrative. He wrote a use- 
ful book, as a man of his ability could not fail 
to do when dealing with subjects with which 
he was thoroughly familiar, and in which he 
was deeply interested ; he had further the ad- 
vantage which arises always from personal 
acquaintance with the subject of the memoir 
and from entire sympathy with him. For the 
student of American history the book must 
thus have a value ; but general readers have 
long since forgotten it, and leave it neglected 
on the shelves of the old libraries. It has long 
been out of print, and copies of it are not in 
demand even by reason of rarity. Jefferson 
was so far right in his prognostications con- 
cerning it that it is now universally regarded 
as a decidedly Federalist biography. 

16 



CHAPTER XIIL 

IN THE VIRGINIA STATE CONVENTION. 

1829. 

The first Constitution of Virginia was formed 
in 1776. Though born amid the throes and 
convulsions of the great Revokitionary strug- 
gle, it may be doubted whether it has been im- 
proved upon by any of the several constitutions 
which have succeeded it. It endured without 
amendment, in war and in peace, to 1830, a 
period of more than half a century, and seemed 
so well, adapted to secure the peace and safety 
of the Commonwealth that many of her wisest 
citizens greatly lamented when the spirit of in- 
novation stirred the people to the new fashion 
of holding a convention and fabricating a suc- 
cessor to it. John Marshall was one of those 
who deprecated and opposed the change ; but 
when he found the result inevitable, he wisely 
resolved to fall in with the popular sentiment, 
and to aid others of the like faith in an en- 
deavor to save what was most valuable and 
dear in the existing order of things. 



IN THE VIRGINIA STATE CONVENTION. 243 

Tlie Chief Justice, with ex-Presidents Madi- 
son and Monroe, and many of the conscript 
fathers of the republic, became members of the 
convention. Mr. Monroe was its chosen presi- 
dent, but owing to the increasing feebleness of 
age was seldom able to preside, and the chair 
was generally occupied by a skillful parliamen- 
tarian in Judge Philip P. Barbour of Orange 
County, who presided with great acceptance. 

A contemporary writer and spectator of the 
scene has sketched the personnel and the lead- 
ing characters of the convention : — 

" Mr. Madisou sat on the left of the Speaker ; Mr. 
Monroe, when not in the chair, on the right. Mr. 
Madison spoke once for half an hour, but although a 
pin might have been heard to drop, so low was his 
tone that from the gallery I could distinguish only 
one word and that was ' constitution.' He stood not 
more than six feet from the Speaker. When he rose 
a great part of the members left their seats and clus- 
tered round the aged statesman. Mr. Madison was 
a small man, with an ample forehead and some ob- 
liquity of vision (I thought the defect probably of 
age), his eyes appearing to be slightly introverted. 
His dress was plain, his overcoat a faded brown 
surtout. Mr. Monroe was very wrinkled and weather- 
beaten, ungraceful in attitude and gesture, and his 
speeches only commonplace." 

Other conspicuous members were, Mr. Giles, 



244 JOHN MARSHALL. 

then Governor of the State ; Mr. Tazewell, John 
Randolph of Roanoke, P. P. Barbour, Philip 
Doddridge of Brooke, Mr. Powell of Frederick, 
Chapman Johnson of Augusta, and Benjamin 
Watkins Leigh of Richmond City. The latter 
made a distinguished figure in the convention, 
and was armed at all points as the leader of the 
lowland or eastern party. Judge Marshall is 
thus described by the wi'iter above quoted : — 

" Judge Marshall, whenever he spoke, which was 
seldom, and for only a short time, attracted great at- 
tention. His appearance was Revolutionary and pa- 
triarchal. Tall, in a long surtout of blue, with a face 
of genius and an eye of fire, his mind possessed the 
rare faculty of condensation ; he distilled an argu- 
ment down to its essence. There were, two parties 
in the house ; the western or radical, and the eastern 
or conservative. Judge Marshall proposed some- 
thing in the nature of a compromise."^ 

The principal questions which engaged the 
deliberations of the convention involved the ex- 
tension of the right of suffrage, the eligibility 
of government officers by the vote of the peo- 
ple, the readjustment of the basis of represen- 
tation in the legislature, and the reform of the 
state judiciary. The particular subject which 
excited the warmest interest, and which threat- 
ened at one time to divide and dismember the 

^ Howe's Virginia Historical Collections, p. 313. 



IN THE VIRGINIA STATE CONVENTION. 245 

State, related to the basis of representation in 
the state legislature. It became at length a sec- 
tional and geographical struggle for power ; the 
western part of the State insisting on a purely- 
white basis, and the eastern counties urging a 
mixed basis founded on a combination of per- 
sons and property. 

Much irritation prevailed in the debates on 
these propositions, and serious consequences 
seemed to threaten the harmony of the Com- 
monwealth. The discussion had lasted through 
several weeks, with little prospect of agree- 
ment. It was in this crisis that the venerable 
Chief Justice suggested a compromise. He ad- 
dressed the convention. His voice was some- 
what feeble at first, but as he proceeded and 
grew warm with the patriotic inspiration of 
his thqme, he was distinctly heard throughout 
the hall ; and the manliness, candor, and cour- 
tesy of his manner conciliated the confidence of 
all parties. He said : — 

" No person in the house can be more truly grati- 
fied than I am at seeing the spirit that has been 
manifested here to-day ; and it is my earnest wish 
that this spirit of conciliation may be acted upon in 
a fair, equal, and honest manner, adapted to the sit- 
uation of the different parts of the Commonwealth 
which are to be affected. As to the general propo- 
sitions which have b'^en offered, there is no essential 



246 JOHN MARSHALL. 

difference between them. That the Federal num- 
bers and the plan of the white basis shall be blended 
together so as to allow each an equal portion of 
power seems very generally agreed to. The differ- 
ence is that one party applies these two principles 
separately, the one to the Senate, the other to the 
House of Delegates ; while the other party proposes 
to unite the two principles, and to carry them in their 
blended form through the whole legislature. One 
gentleman differs in the whole outline of this plan. 
He seems to imagine that we claim nothing of re- 
publican principles when we claim a representation 
for property. Permit me to set him right. I do 
not say that I hope to satisfy him, or others who say 
that republican government depends on adopting the 
naked principle of numbers, that we are right ; but 
I think we can satisfy him that we do entertain a 
different opinion. I think the soundest principles of 
republicanism do sanction some relation between rep- 
resentation and taxation. Certainly no opinion has 
received the sanction of wiser statesmen and patriots. 
I think the two ought to be connected. I think this 
was the principle of the Revolution, the ground on 
which the colonies were torn from the mother country 
and made independent states. 

" I shall not however go into that discussion now. 
The House has already heard much said about it. I 
would observe that this basis of representation is a 
matter so important to Virginia that the subject was 
reviewed by every thinking individual before this 
convention assembled. Several different plans were 



IN THE VIRGINIA STATE CONVENTION. 247 

contemplated. The basis of white population alone ; 
the basis of free population alone ; a basis com- 
pounded of taxation and white population (or, which 
is the same thing, a basis of Federal numbers); two 
other bases were also proposed, one referring to the 
total population of the State, the other to taxation 
alone. Now of these various propositions, the basis of 
white population and the basis of taxation alone are 
the two extremes. Between the free population and 
the white population there is almost no difference. 
Between the basis of total population and the basis 
of taxation there is but little difference. The peo- 
ple of the east thought that they offered a fair com- 
promise, when they proposed the compound basis of 
population and taxation, or the basis of the Federal 
numbers. We thought that we had republican pre- 
cedent for this — a precedent given us by the wisest 
and truest patriots that ever were assembled. But 
that is now past. We are now willing to meet on a 
new middle ground, beyond what we thought was a 
middle ground and the extreme on the other side. 
We considered the Federal numbers as middle ground, 
and we may, perhaps, now carry that proposition. 
The gentleman assumed too much when he said that 
question was decided. It cannot be considered as 
decided until it has come before the House. The 
majority is too small to calculate upon it as certain 
in the final decision. We are all uncertain as to the 
issue. But all know this, that if either extreme is 
carried, it must leave a wound in the breast of the 
opposite party which will fester and rankle and pro- 



248 JOHN MARSHALL. 

duce I know not what mischief. The majority also 
are now content once more to divide the ground and 
to take a new middle ground. The only difficulty is 
whether the compromise shall be effected by applying 
one principle to the House of Delegates and the 
other to the Senate, or by mingling the two principles 
and applying them in the same form to both branches 
of the legislature. I incline to the latter opinion. 
I do not know and have not heard any sufficient 
reason assigned for adopting different principles ; and 
there will be just the same divisions between the two, 
as appears in this convention. It can produce no 
good, and may, I fear, produce some mischief. It 
will be said that one branch is the representation of 
one division of the State, and the other branch of an- 
other division of it. Ought they not both to repre- 
sent the whole ? Yet I am ready to submit to such 
an arrangement, if it shall be the opinion of a major- 
ity of this House. If this convention shall think it 
best that the House of Delegates shall be organized 
in one way and the Senate in another, I shall not 
withhold my assent. Give me a constitution that 
shall be received by the people; a constitution in 
which I can consider their different interests to be 
duly represented, and I will take it, though it may 
not be that I most approve. 

" The principle, then, which I propose as a com- 
promise is, that the apportionment of representation 
shall be made according to an exact compound of 
the two principles of the white basis and of the 
Federal numbers according to the census of 1820." 



IN THE VIRGIN [A STATE CONVENTION. 249 

There was a considerable discussion, follow- 
ing Judge Marshall's speech. The '" exact com- 
pound " would have given, as was said, the 
whole white population and three tenths of the 
colored, whether bond or free. When Judge 
Marshall again addressed the convention, liis 
speech, though brief, " was at the time regarded 
as an unrivaled specimen of lucid and conclu- 
sive reasoning." ^ 

" Two propositions," he said, " respecting the basis 
of representation have divided this convention almost 
equally. One party has supported the basis of white 
population alone, the other has supported a basis 
compounded of white population and taxation, — or, 
which is the same thing in its results, the basis of 
Federal numbers. The question has been discussed 
until discussion has become useless. It has been 
argued until argument is exhausted. We have now 
met on the ground of compromise. . . . One party 
proposes that the House of Delegates shall be formed 
on the basis of white population exclusively, and the 
Senate on the mixed basis of white population and 
taxation, or on the Federal numbers. The other 
party proposes that the white population shall be 
combined with Federal numbers, and shall, mixed in 
equal proportions, form the basis of representation 
in both Houses. This last proposition must be equal. 
All feel it to be equal. If the two principles are 
combined exactly, and, thus combined, form the basis 

1 Southern Literary Messenrjei , vol. ii. p. 188. 



250 JOHN MARSHALL. 

of both Houses, the compromise must be perfectly 
equal. . . . 

" After the warm language (to use the mildest 
phrase) which has been mingled with argument on 
both sides, I heard with inexpressible satisfaction 
propositions for compromise proposed by both parties 
in the language of conciliation. I hail these auspi- 
cious appearances with as much joy as the inhabitant 
of the polar regions hails the reappearance of the 
sun after his long absence of six tedious months. 
Can these appearances prove fallacious ? Is it a 
meteor we have seen and mistaken for that splendid 
luminary which dispenses light and gladness through- 
out creation ? It must be so, if we cannot meet on 
equal ground. If we cannot meet on the line that 
divides us equally, then take the hand of friendship 
and make an equal compromise, it is vain to hope 
that any compromise can be made." 

The wise and conciliatory terms for com- 
promising the formidable disputes which had 
grown out of the discussion of the basis ques- 
tion, especially the candid spirit in which Mar- 
shall presented those terms, led to a better 
temper in the convention, and powerfully con- 
duced to the acceptance of the form of settle- 
ment which was finally adopted and incorpo- 
rated into the new constitution. It was upon 
the grand principle of mutual concession that 
the Chief Justice yielded at length his cordial 
assent to that instrument, though many of its 



IN THE VIRGINIA STATE CONVENTION. 251 

provisions were in opposition to bis settled con- 
victions. 

The question of changing the manner of ap- 
pointing the judges and magistrates of the 
Commonwealth, and their tenure of ofl&ce, nat- 
urally awakened earnest solicitude in the mind 
of the Chief Justice. On this subject he spoke 
with unwonted earnestness and power. He 
was especially desirous to preserve the county 
court system of Virginia, — a system, by the 
way, which was regarded by Mr. Jefferson 
with great aversion : — 

" The justices of these courts," said the latter, 
" are self-chosen, are for life, and perpetuate their 
own body in succession forever, so that a faction 
once possessing themselves of the bench of a county 
can never be broken up, but hold their county in 
chains forever indissoluble. Yet these justices are 
the real executive, as well as judiciary, in all our 
min6r and most ordinary concerns. They tax us at 
will, and fill the office of sheriff. . . . The juries — 
our judges of all fact, and of the law when they choose 
it — are not selected by the people nor amenable to 
them. They are chosen by an officer named by the 
court and executive." ^ 

Judge Marshall, on the contrary, well versed 

in the practical operation and the wholesome 

conservative influence exerted by these tribu- 

1 Jefferson's Works: Letter to Samuel Kerchival, July, 1816. 



252 JOHN MARSHALL. 

nals, earnestly advocated their preservation and 
a continuance in the present mode of appoint- 
ing the justices. He said : — 

"I am not in the habit of bestowing extravagant 
eulogies upon my countrymen ; I would rather hear 
them pronounced by others ; but it is a truth that no 
State in the Union has hitherto enjoyed more com- 
plete internal quiet than Virginia. There is no part 
of America where less disquiet and less ill-feeling 
between man and man is to be found, than in this 
Commonwealth ; and I believe most firmly that this 
state of things is mainly to be ascribed to the prac- 
tical operation of our county courts. The magistrates 
who compose those courts consist in general of the 
best men in their respective counties. They act in 
the spirit of peacemakers, and allay rather than ex- 
cite the small disputes and differences which will 
sometimes arise among neighbors. It is certainly 
much owing to this that so much harmony prevails 
amongst us. These courts must be preserved ; if 
we part with them, can we be sure that we shall 
retain among our justices of the peace the same re- 
spectability and weight of character as are now to 
be found ? I think not. . . . 

"I have grown old in the opinion that there is 
nothing more dear to Virginia, or that ought to be 
dearer to her statesmen, and that the best interests 
of our country are secured by it. Advert, sir, to the 
duties of a judge. He has to pass between the gov- 
ernment and the man whom that government is pros- 



IN THE VIRGINIA STATE CONVENTION. 253 

ecuting; between the most powerful individual in 
the community and the poorest and most unpopular. 
It is of the last importance that, in the exercise of 
these duties, he should observe the utmost fairness. 
Need I press the necessity of this ? Does not every 
man feel that his own personal security and the se- 
curity of his property depend on that fairness ? The 
judicial department comes home, in its effects, to 
every man's fireside ; it passes on his property, his 
reputation, his life, his all. Is it not to the last de- 
gree important that he should be rendered perfectly 
and completely independent, with nothing to influence 
or control him but God and his conscience ? . . . 
We have heard about sinecures and judicial pen- 
sioners. Sir, the weight of such terms is well known 
here. To avoid creating a sinecure you take away 
a man's duties when he wishes them to remain ; you 
take away the duty of one man and give it to an- 
other ; and this is a sinecure. What is this in sub- 
stance but saying that there is and can be and ought 
to be no such thing as judicial independence. . . . 
I have always thought, from my earliest youth until 
now, that the greatest scourge an angry Heaven 
ever inflicted upon an ungrateful and sinning people 
was an ignorant, a corrupt, or a dependent judiciary. 
Our ancestors thought so ; we thought so till very 
lately ; and I trust the vote of this day will show 
that we think so still. Will you draw down this 
curse on Virginia ? " 

The Chief Justice was now seventy-fiive years 
of age, and this service in the Virginia Conven- 



254 JOHN MARSHALL. 

tion closed his political life. But, though some- 
what enfeebled physically by age and infirmity, 
he retained and actively discharged the duties 
of his judicial ofiice until his death, like Moses, 
with " his eye not dimmed nor his natural 
force abated." 



CHAPTER XIV. 

OPINIONS: PERSONAL TRAITS. 

1832-1835. 

Judge Marshall's opinions on the ques- 
tion of slavery were formed with deliberation 
and were well known. Though a slave-holder 
himself by inheritance, he felt the institution 
to be a plague-spot on the body politic, which 
he earnestly desired to see eradicated. He un- 
derstood, however, the bearings of the subject 
too well to entertain any sympathy with the 
schemes of instantaneous abolition, which fa- 
natical intermeddlers urged so persistently, 
without pausing to reflect on the dreadful con- 
sequences which would ensue from the two 
races occupying the same territory in natural 
and inevitable antagonism, under that plan of 
emancipation. He believed that, as a peaceful 
remedy, it would in the condition of the coun- 
try at that time have proved a failure, and 
have issued in the bitter hostility of the races, 
and the almost certain destruction, ultimately, 
of the colored population. The experience of 



256 JOHN MARSHALL. 

Great Britain in such a scheme of emancipa- 
tion in her West India colonies, with the ex- 
ample of the San Domingo massacres as a warn- 
ing, held out no hope of good results in our 
slave States. This strengthened his conviction 
that unless a scheme of voluntary deportation, 
as proposed b}^ the Colonization Society, should 
prove successful, the evil was incurable except 
by some such destructive convulsion as civil 
war. He was therefore the strong and ardent 
advocate of the objects of that society, and 
favored the plan of state aid and cooperation, 
and of dedicating the entire proceeds of the 
sale of the public lands of the United States to 
the purchase and transportation of the slave 
population to Africa. On this subject he urged 
his views with great force. 

" It is undoubtedly of great importance," lie said, 
" to retain the countenance and protection of the gen- 
eral government. Some of our cruisers stationed on 
the coast of Africa would at the same time interrupt 
the slave-trade, a horrid traffic detested by all good 
men, and would protect the vessels and commerce of 
the colony from pirates who infest those seas. The 
power of the government to afford this aid is not, I 
believe, contested. I regret that its power to grant 
pecuniary aid is not equally free from question. On 
this subject I have always thought and still tliink that 
the proposition made by Mr. King in the Senate is 



OPINIONS: PERSONAL TRAITS. 257 

the most unexceptionable and the most effective that 
can be devised. . . . The lands are the property of 
the United States, and have hitherto been disposed 
of by the government under the idea of absolute 
ownership." ^ 

Judge Marshall took no active part in the 
political controversies of the day, nor of course 
could lie properly do so, though he was not 
without a warm interest respecting them. He 
lamented, even with gloom and despondency, 
the ascendency of principles in Virginia which 
he believed, if carried into practice, would lead 
to civil war and too probably involve the over- 
throw of the government. In a letter to Judge 
Story, written two years before his death, in 
which he acknowledged the receipt of Story's 
"Commentaries on the Constitution," which 
had been dedicated to him, he says : — 

" I have just finished reading your great work, and 
wish it could be read by every statesman and every 
would-be statesman in the United States. It is a 
comprehensive and an accurate commentary on our 
Constitution, formed in the spirit of the original text. 
In the South we are so far gone in political meta- 
physics that I fear no demonstration can restore us tc» 
common sense. The words ' State Rights,' as ex- 
pounded by the Resolutions of 1798, and the Report 

1 Fifteenth Annual Report of the Colonization Society^ p. 32 
Letter from Marshall, Dec. 14, i831. 
17 



258 JOHN MARSHALL. 

of 1799, construed bj our legislature, have a charm 
against which all reasoning is vain. Those resoluf 
tioDs and that report constitute the creed of every 
politician who hopes to rise in Virginia ; and to ques- 
tion them, or even to adopt the construction given by 
their author,^ is deemed political sacrilege. The sol- 
emn and interesting admonitions of your concluding 
remarks will not, I fear, avail as they ought to avail 
against this popular frenzy. 

I am grateful for the very flattering terms in which 
you speak of your friend in many parts of this val- 
uable work as well as in the dedication. In despite 
of my vanity I cannot suppress the fear that you will 
be supposed by others, as well as myself, to have con- 
sulted a partial friendship farther than your deliber- 
ate judgment will approve. Others may not contem- 
plate this partiality with as much gratification as its 
object." 2 

While the Chief Justice was opposed to the 
general principles of President Jackson's ad- 
ministration in 1832-33, he most heartily ap- 
proved the President's bold and vigorous treat- 
ment of the nullification heresy, which threat- 
ened civil war and imperiled the safety of the 
Union. He cordially approved the proclama- 
tion of the President and the Force Bill en- 
acted by Congress, both leveled at the dan- 
gerous dogma which was enacted into law by 

1 Mr. Madison. 

2 Story's Z/z/e and Letters, vii. p. 135 ; July 31, 1833. 



OPINIONS: PERSONAL TRAITS. 259 

the State of South Carolina. With Judge Mar- 
shall, both nullification and secession were ut- 
terly subversive of all stable government, and 
at open war with its organic principles and ob- 
jects. Judge Story, speaking of a dinner at 
the President's at the time of the debate on 
the Force Bill, says : — 

" I forgot to say that, notwithstanding ' I am the 
most dangerous man in America,'^ the President 
specially invited me to drink a glass of wine with 
him. But what is more remarkable, since his last 
proclamation and message the Chief Justice and my- 
self have become his warmest supporters, and shall 
continue so just as long as he maintains the princi- 
ples contained in them. Who would have dreamed 
of such an occurrence ? " ^ 

Marshall's health was naturally good, and 
being of simple, regular, and temperate habits, 
he suffered little from sickness of any kind. 
We are indebted to his grandson, John Mar- 
shall, Esq., of Markham, for the following in- 
teresting letter from the Chief Justice, found 
among the letters of his son, the late Edward 
C. Marshall, hitherto unpublished : — 

"Washington, Feb. 15, 1832. 

" My dear Son, — Your letter of the 1 0th gave 
me great pleasure, because it assured me of the health 

1 So called by General Jackson. 

2 Story's Life and Letters, vol. il. p. 117. 



260 JOHN MARSHALL. 

of your family and the health of the other families in 
which I take so deep an interest. My own has im- 
proved. I strengthen considerably, and am able, 
without fatigue, to walk to court, a distance of two 
miles, and return to dinner. At first this exercise 
was attended with some difficulty, but I feel no incon- 
venience from it now. The sympathetic feeling to 
which you allude has sustained no diminution ; I fear 
it never will. I perceive no symptoms, and I trust I 
never shall, of returning disease. 

"The question on Mr. Van Euren's nomination^ 
was not exempt from difficulty. Those who opposed 
him, I believe, thought conscientiously that his ap- 
pointment ought not to be confirmed. They feel a 
great hostility to that gentleman from other causes 
than his letter to Mr. McLane. They believe him 
to have been at the bottom of a system which they 
condemn. Whether this conviction be well or ill 
founded, it is their conviction, — at least I believe it 
is. In such a case it is extremely difficult, almost 
impossible, for any man to separate himself from his 
party. 

" This session of Congress is indeed peculiarly in- 
teresting. The discussions on the tariff and on the 
Bank, especially, will, I believe, call forth an un- 
usual display of talents. I have no hope that any 
accommodation can take place on the first question. 
The bitterness of party spirJf on that subject threat' 
ens to continue unabated. There seems to be no 
prospect of allaying it. 

1 As minister to England. 



OPINIONS: PERSONAL TRAITS. 261 

" The two great objects in Virginia are internal im- 
provement and our colored population. On the first, 
I despair. On the second, we might do much if our 
unfortunate political 'prejudices did not restrain us 
from asking the aid of the Federal Government. As 
far as I can judge, that aid, if asked, would be freely 
and liberally given. 

" The association you speak of, if it could be made 

extensive, might be of great utility. I would suggest 

the addition of a resolution not to bring any slave 

within the country. My love to . 

" I am, my dear son, 

" Your affectionate father, 

"J. Marshall." 
"To Mr. E. C. Marshall." 

It was only in the year 1831, when he was 
seventy-six years of age, that Judge Marshall 
was attacked Avith any serious disease. Then 
he became the victim of that cruel malady, 
the stone. His recovery from a severe surgical 
operation was attributed by one of his physi- 
cians " to his extraordinary self-possession, and 
to the calm and philosophical views which he 
took of his case." 

Although he was restored to health and 
shared the great joy of his friends and family 
on that account, the unseen shadow of a great 
calamity was impending over him, which too 
soon caused him to realize in sadness the im- 
pressive v^ords of the poet : — 



262 JOHN MARSHALL. 

" The spider's most attenuated thread 
Is cord, is cable, to man's tender tie 
On earthly bliss ; it breaks at every breeze." 

This heavy misfortune was the death of his 
wife, to whom he was so ardently attached, and 
which followed closely upon his own restora- 
tion to health, taking place December 25, 1831. 
He was devoted to her, and felt her loss with 
the keenest anguish. She had suffered much 
and long from continued ill -health, and, as 
Bishop Meade remarks, the tender and assidu- 
ous attention he paid to her was the most in- 
teresting and striking feature in his domestic 
character. " She was nervous in the extreme. 
The least noise was sometimes agony to her 
whole frame, and his perpetual endeavor was to 
keep the house and yard and out-houses from 
the slightest cause of distressing her ; walking, 
himself, at times, about the house and yard 
without shoes. On one occasion, when she was 
in her most distressing state, the town authori- 
ties of Richmond manifested their great respect 
for him and sympathy for her by having either 
the town clock or town bell muffled." ^ 

Judge Story, who saw much of him at this 
time, afterward said : " She must have been a 
very extraordinary woman, so to have attached 
him ; and I think he is the most extraordinary 

1 Old Churches and Families of Virginia, vol. ii. p. 222. 



OPINIONS: PERSONAL TRAITS. 263 

man I ever saw, for the depth and tenderness of 
his feelings." ^ 

At the beginning of the next term of the Su- 
preme Court, January, 1833, the Chief Justice 
was present, and although now in his seventy- 
eighth year his health seemed excellent. " The 
court opened on Monday last," says Judge 
Story, " and all the judges were present, except 
Judge Baldwin. All were in good health, and 
the Chief Justice seemed to revive and enjoy 
anew his green old age. He brought with him 
and presented to each of us a copy of the new 
edition of the Life of Washington, inscribing on 
the fly page of mine a very kind remark. . . . 
Having some leisure on our hands, the Chief 
Justice and myself have devoted some of it 
to attendance upon the theatre to hear Miss 
Fanny Kemble, who has been in the city the 
past week. We attended on Monday night, 
and on the Chief Justice's entrance into the 
box he was cheered in a marked manner. He 
behaved as he always does, with extreme mod- 
esty, and seemed not to know that the compli- 
ment was designed for him. We have seen 
Miss Kemble as Julia in ' The Hunchback,' and 
as Mrs. Haller in ' The Stranger.' ... I have 
never seen any female acting at all comparable 
to hers. She is so graceful that you forget that 

1 Story's Life and Letters : Letter to Mrs. Story, vol. ii. p. 86. 



264 JOHN MARSHALL. 

she is not very handsome. In Mrs. Haller she 
threw the whole audience into tears. The Chief 
Justice shed them in common with younger 
eyes." ^ 

As to Judge Marshall's religious opinions 
and character, no man can speak with more 
accuracy and authority than the venerable 
Bishop Meade, who, as an Episcopal clergyman 
first, and afterward Bishop of the Episcopal 
Church of Virginia, knew him more intimately 
in these ecclesiastical relations than any of his 
contemporaries. It is sufficiently obvious, from 
what has already been told of the simplicity of 
Marshall's character and the benevolence of his 
life, that there were no materials in his mind or 
character out of which an atheist or an infidel 
could have been made. The Bishop writes : "I 
can never forget how he would prostrate his 
tall form before the rude low benches without 
backs at Cool Spring meeting-house, in the 
midst of his children and grandchildren and 
his neighbors. In Richmond he always set an 
example to the gentlemen of the same conform- 
ity, though many of them did not follow it. 
He not only conformed to the ceremonies of 
religion, but his whole life evinced virtuous 
principles and affections. He was a sincere 
frienii to religion, and a constant attendant 

^ Story's Life and Letters, vol. vii. p. 116. 



OPINIONS: PERSONAL TRAITS. 265 

Upon its ministrations. Brought up in ths 
Episcopal Church, he adhered to it through 
life ; though not until a short time before his 
death a believer in its fundamental doctrines." 
His daughter, during her last illness, said : — 

" The reason why he never communed was, that 
he was a Unitarian in opinion, though he never joined 
their society. He told her he believed in the truth 
of the Christian Revelation, but not in the divinity of 
Christ ; therefore he could not commune in the Epis- 
copal Church. But during the last months of his 
life he read ' Keith on Prophecy,' where our Saviour's 
divinity is incidentally treated, and was convinced by 
this work, and the fuller investigation to which it led, 
of the supreme divinity of the Saviour. He deter- 
mined to apply for admission to the communion of 
our Church, objected to communion in private, be- 
cause he thought it his duty to make a public con- 
fession of the Saviour ; and while waiting for im- 
proved health to enable him to go to the church for 
that purpose, he grew worse and died, without ever 



In this connection, and in illustration of the 
depth and fervor of his religious convictions, 
the following authentic anecdote is of interest. 
-He was once traveling in the northern part 
of Virginia, and about nightfall arrived at the 
village of Winchester in Frederick County. 
He drove to what was then known as Mo- 



266 JOHN MARSHALL. 

Guire's Hotel. What occurred there has been 
thus related ; — 

" A gentleman was traveling in one of the coun- 
ties in Virginia, and about the close of the day 
stopped at a public house to obtain refreshment and 
spend the night. He had been there but a short 
time before an old man alighted from his gig, with 
the apparent intention of becoming his fellow-guest 
at the same house. As the old man drove up, the 
traveler observed that both the shafts of his gig 
were broken, and that they were held together by 
withes formed from the bark of a hickory sapling. 
He observed also that he was plainly clad, that his 
knee-buckles were loosened, and that something like 
negligence pervaded his dress. Conceiviug him to 
be one of the honest yeomanry of our land, the 
courtesies of strangers passed between them, and they 
entered the tavern. About the same time an addi- 
tion of three or four young gentlemen was made 
to their number, — most, if not all of them, of the 
legal profession. As soon as they became conven- 
iently accommodated, the conversation was turned by 
one of the latter upon an eloquent harangue which 
had that day been displayed at the bar. It was re- 
plied by another that he had witnessed on the same 
day a degree of eloquence no doubt equal, but it 
was from the pulpit ; and a warm and able alterca- 
tion ensued, in which the merits of the Christian re- 
ligion became the subject of discussion. From six 
o'clock until eleven the young champions wielded 
the sword of argument, adducing with ingenuity and 



OPINIONS: PERSONAL TRAITS. 267 

ability everything that could be said pro and con- 
During this protracted period the old gentleman list- 
ened with all the meekness and modesty of a child, 
as if he was adding new information to the stores 
of his own mind. . . . 

" At last one of the young men, remarking that it 
was impossible to combat with long established preju- 
dices, wheeled about, and, with some familiarity, ex- 
claimed: ' Well, my old gentleman, what think you of 
these things?' 'If,' said the traveler, 'a streak of 
vivid lightning had at that moment crossed the room, 
their amazement could not have been greater than 
it was with what followed.' The most eloquent and 
unanswerable appeal was made for nearly an hour 
by the old gentleman, that he ever heard or read. 
So perfect was his recollection, that every argument 
urged against the Christian religion was met in the 
order in which it was advanced. Hume's sophistry 
on the subject of miracles was, if possible, more per- 
fectly answered than it had already been by Camp- 
bell. And in the whole lecture there was so much 
simplicity and energy, pathos and sublimity, that not 
another word was uttered. ' An attempt to describe 
it,' said the traveler, ' would be an attempt to paint 
the sunbeams.' It was now a matter of curiosity and 
inquiry who the old gentleman was. The traveler 
concluded it was the preacher from whom the pulpit 
eloquence was heard ; but no, it was the Chief Jus- 
tice of the United States" ^ 

1 This account was originally published in the Winchester 
Republican, but is preserved in durable form in Howe's Vir- 
ginia Historical Collections, p. 275. 



268 JOHN MARSHALL. 

The residence of the Chief Justice in Rich- 
mond, built by himself, and situated on Shock- 
hoe Hill, yet stands between Marshall and Clay 
streets, the former street being named after 
him, and is owned and occupied by his de- 
scendants. Without any architectural preten- 
sions, it is a large and commodious brick man- 
sion, originally situated upon an ample lot of 
about two acres. His judicial labors were so 
arranged that he spent much of the year at 
home. The session of the Supreme Court at 
Washington and of the circuit courts of Virgi- 
nia and North Carolina comprised the annual 
round of his official duties. 

" Having thus some leisure, and being fond of ag- 
riculture, he purchased a farm three or four miles 
from Richmond, in Henrico County, which he visited 
frequently, often on foot. He retained also the Oak 
Hill estate in Fauquier County, to which he made an 
annual visit. His family and social attachments were 
warm and constant, and these visits to Fauquier were 
always highly enjoyed both by himself and his numer- 
ous relatives and friends." 

He was so full of genuine benevolence and 
good-will that his hand, heart, and purse were 
ever ready for a kindness, and he was an active 
member of numerous societies whose mission it 
was to do good. He belonged for nearly half a 
century to the Amicable Society at Richmond, 



OPINIONS: PERSONAL TRAITS. 269 

which was formed to relieve strangers and way- 
farers in distress, for whom the law made no 
provision. He was a member of the Masonic 
Order. He belonged to the Colonization So- 
ciety^ and took an active interest in its objects. 
He was a prominent officer of the Virginia 
Bible Society^ and was a friend to the Sunday- 
schools , Once he walked at the head of the 
procession of these schools through the streets 
of Richmond, in token of his earnest sympathy 
in their cause. He was a pew-owner in the 
Momimental Episcopal Church, and a regular 
attendant on its services. 

The Chief Justice was a great admirer of the 

i ladies, whose society he greatly enjoyed. He 
always warmly defended their equality in na- 
tive intellect with the sterner sex. He was 
remarkable also for his fondness for children 
and young men. He took an active interest in 
their sports and exercises, and was always a 

!J favorite with them. 

" He was a most conscientious man," says Bishop 
Meade, " in regard to some things which others might 
regard as too trivial to be observed. It was my priv- 
ilege more than once to travel with him between Fau- 
quier and Fredericksburg, when we were both going 
to the lower country. On one occasion, the roads be- 
ing in their worst condition, when we came to that 
most miry part called the ' Black Jack,' he found 



270 JOHN MARSHALL. 

that the travelers through it had taken a nearer and 
better road through a plantation, the fence being down 
or very low. I was proceeding to pass over ; but he 
said we had better go round, although each step was 
a plunge ; adding that it was his duty, as one in 
office, to be very particular in regard to such things. 
As to some other matters, however, he was not so 
particular. Although myself never much given to 
dress or equipage, I was not at all ashamed to com- 
pare with him during these travels, whether as to 
clothing, horse, saddle, or bridle. Servant he had 
none. Federalist as he was in politics, in his man- 
ners and habits he was truly Republican. Would 
that all republicans were like him in this respect. . . . 
On one of my visits to Richmond, being in a street 
near his house, between daybreak and sunrise, I met 
him on horseback, with a bag of clover seed lying 
before him, which he was carrying to his farm, it 
being the time of sowing such seed." ^ 

Although his great modesty and the natural 
reserve of his manners in society might be sup- 
posed to render him somewhat morose, Judge 
Marshall was of an extremely cheerful, even 
hilarious, disposition, and greatly enjoyed the 
society of persons congenial to him. He was 
a member of the Barbecue or Quoit Club at 
Richmond for more than forty years, and al- 
ways participated in the exercise and recreation 
that took place at their meetings with the zest 

1 Old Churches and Families of Virginia, vol. ii. p, 222. 



OPINIONS: PERSONAL TRAITS. 271 

of true enjoyment. This famous club was 
formed in 1788, and consisted of thirty mem- 
bers. They met once a fortnight from May 
until October, near Buchanan's Spring, about 
a mile from the city. A visitor, who was pres- 
ent at a meeting of the club in the lifetime of 
the Chief Justice, has given the following ac- 
count of it : — 

** The club consists of judges, lawyers, doctors, 
and merchants, — and the Governor of the Common- 
wealth has a general invitation, when he enters into 
office. 

" On the day I was present, dinner was ready at 
half-past three o'clock, and consisted of excellent 
meats and fish, well prepared and well served, with 
the vegetables of the season. Your veritable gour- 
mand never fails to regale himself on his favorite 
barbecue, which is a fine fat pig called a shoat^ 
cooked on or over the coals and highly seasoned 
with cayenne. A dessert of melons and fruits fol- 
lows, and punch, porter, and toddy are the table 
liquors ; but with the fruits comes on the favorite 
beverage of the Virginians, — mint-julep, in place of 
wine. I never witnessed more festivity and good 
humor than prevailed at this club. By the constitu- 
tion, the subject of politics is forbidden. ... It was 
refreshing to see such a man as Chief Justice Mar- 
shall laying aside the reserve of his dignified stations 
and contending with the young men at a game of 
quoits, with all the emulation of youth. 



272 JOHN MARSHALL. 

" Many anecdotes are told of occurrences at these 
meetings. Such is the partiality for the Chief Justice, 
that it is said the greatest anxiety is felt for his suc- 
cess in the game by by-standers ; and on one occa- 
sion an old Scotch gentleman was called on to decide 
between his quoit and that of another member, 
who, after seemingly careful measurement, announced 
^Mister Mareshall has it a leaitle^ when it was visible 
to all that the contrary was the case. A French 
gentleman (Baron Quenet) was at one time a guest 
when the Governor, the Chief Justice, and several 
of the judges of the High Court of Appeals were 
engaged with others, with coats off, in a well-con- 
tested game. He asked if it was possible that the 
dignitaries of the land could thus intermix with pri- 
vate citizens ; and when assured of the fact he ob- 
served, with true Galilean enthusiasm, that ' he had 
never before seen the real beauty of republican- 
ism.' ... 

" Judge Marshall was very punctual in his attend- 
ance at the club, and no one contributed more to the 
pleasantness of their meetings. Even as years ad- 
vanced he was among the most skillful in throwing 
the discus, as he was in discussion ; . . . and it de- 
lighted his competitors as much as himself to see him 
ring the meg. Pie would hurl his iron ring of two 
pounds' weight with rarely erring aim fifty-five or 
sixty feet ; — and at some chef d'ceuvre of skill, in 
himself or his partner, would spring up and clap his 
hands with all the light-hearted enthusiasm of boy- 
hood. In his yearly visits to Fauquier, where the 



OPINIONS: PERSONAL TRAITS. 273 

proper implements of his sport were not to be had, 
he still practiced it among his rustic friends with flat 
stones for quoits. 

" A casual guest at a barbecue — one of those rural 
entertainments so frequent among the people of Vir- 
ginia — saw, soon after his arrival at the spot, an 
old man emerge from a thicket which bordered the 
neighboring brook, carrying as large a pile of these 
flat stones as he could hold between his right arm 
and his chin. He stepped briskly up to the com- 
pany and threw down his load among them, saying, 
* There I here are quoits enough for us all.' The 
stranger's surprise may be imagined when he found 
that this plain and cheerful old man was the Chief 
Justice of the United States." 

Judge Marshall was an early riser, and was 
often seen returning from market at sunrise with 
poultry in one hand and a basket of vegetables 
in the other. It is related that while in the 
market, on one occasion, a young man, who had 
recently removed to Richmond, was fretting and 
swearing violently because he could find no one 
to take home his turkey. Marshall stepped up 
and offered to take the turkey home for him. 
Arriving at the house, the young man inquired 
" What shall I pay you ? " '' Oh, nothing," 
was the reply ; " it was on my way, and no 
trouble." As Marshall walked away, the other 
inquired of a by-stander, — '' Who is that po- 

18 



274 JOHN MARSHALL. 

lite old man that brought home my turkey for 
me ? " ''That," was the reply, " is Judge Mar- 
shall, Chief Justice of the United States." 

No man was more just or more generous. 
Of this we cite a single example. In passing 
through Culpeper, on his way to Fauquier, he 
fell in company, at a tavern on the roadside, 
with Mr. S., an old brother officer of the army 
of the Revolution. In the course of conversa- 
tion, Marshall learned that there was a mort- 
gage on the estate of his friend to the amount 
of 13,000, which was about to fall due. The 
old gentleman was unable to raise the sum, and 
was greatly distressed at the prospect of im- 
pending ruin. Before parting from him, Mar- 
shall privately left a check for the amount 
with the landlord, which was presented to Mr. 
S. after Marshall's departure. Impelled by a 
chivalrous feeling of independence, Mr. S. 
mounted and spurred his horse until he over- 
took the judge, and then, with thanks, sought 
to decline the generosity. But Marshall stren- 
uously persisted ; and finally there was a com- 
promise, by which Marshall took security on 
the loan ; but he was never known to call for 
the money. ^ 

The fame and popularity of the Chief Jus- 
tice naturally attracted to him the attention of 

1 Howe's Virginia Historical Collections, p. 266. 



OPINIONS: PERSONAL TRAITS. 275 

foreign visitors to this country. Among others, 
Miss Martineau met him at Washington in 
the winter preceding his death. She said of 
him : — 

" With Judge Story sometimes came the man to 
whom he looked up with feehngs little short of ado- 
ration, — the aged Chief Justice Marshall. There 
was almost too much mutual respect in our first 
meeting; we knew something of his individual merits 
and services, and he maintained through life and 
carried to his grave a reverence for woman, as rare 
in its kind as in its degree. It had all the theoret- 
ical fervor and magnificence of Uncle Toby's, with 
the advantage of being grounded upon an extensive 
knowledge of the sex. He was the father and 
grandfather of woman ; and out of this experience he 
brought, not only the love and pity which their offices 
and position command, and the awe and purity which 
they excite in the minds of the pure, but a steady 
conviction of their intellectual equality with men, 
and with this a deep sense of their social injuries. 
Throughout life he so invariably sustained their 
cause that no indulgent libertine dared to flatter and 
humor, no skeptic, secure in the possession of power, 
dared to scoff at the claims of woman in the presence 
of Marshall, who, made clear-sighted by his purity, 
knew the sex far better than either. 

" How delighted we were to see Judge Story bring 
in the tall, majestic, bright-eyed old man, — old by 
chronology, by the lines on his composed face, and 



276 JOHN MARSHALL. 

by his services to the republic ; but so dignified, so 
fresh, so present to the time, that no feeling of com- 
passionate consideration for age dared to mix with 
the contemplation of him. 

" The first evening he asked me much about Eng- 
lish politics, and especially whether the people were 
not fast ripening for the abolition of our religious 
establishment, — an institution which, after a long 
study of it, he considered so monstrous 'n principle, 
and so injurious to true religion in practice, that he 
could not imagine that it could be upheld for any- 
thing but political purposes. There was no prejudice 
here on account of American modes being different ; 
for he observed that the clergy were, there as else- 
where, far from being in the van of society, and 
lamented the existence of much fanaticism in the 
United States ; but he saw the evils of an establish- 
ment, the more clearly, not the less, from being 
aware of the faults in the administration of religion 
at home. The most animated moment of our con- 
versation was when I told him I was going to visit 
Mr. Madison on leaving Washington. He instantly 
sat upright in his chair, and with beaming eyes began 
to praise Mr. Madison. Madison received the men- 
tion of Marshall's name in just the same manner ; 
yet these men were strongly opposed in politics, and 
their magnanimous appreciation of each other under- 
went no slight or brief trial." ^ 

From another English traveler, who met the 

1 Martineau's Western Travel, English ed., vol. i. p. 247. 



OPINIONS: PERSONAL TRAITS. 277 

Chief Justice in Richmond, we have the follow- 
ing sketch : — 

"The judge is a tall, venerable man, about eighty 
years of age, his hair tied in a queue, and with a coun- 
tenance indicating that simplicity of mind and benig- 
nity which so eminently distinguish his character. 
As a judge he has no rival, — his knowledge being 
profound, his judgment clear and just, and his quick- 
ness in apprehending either the fallacy or truth of 
an argument surprising. I had the pleasure of sev- 
eral long conversations with him, and was struck with 
admiration at the extraordinary union of modesty 
and power, gentleness and force, which his mind dis- 
plays. What he knows he communicates without 
reserve ; he speaks with clearness of expression and 
in a tone of simple truth which compels conviction ; 
and on all subjects on which his knowledge is nof 
certain, or which admit of doubt or argument, he 
delivers his opinion with candid diffidence, and with 
a deference to that of others amounting almost to 
timidity ; still, it is a timidity that would disarm the 
most violent opponent, and win respect and credence 
from any auditor. I remember having often ob- 
served a similar characteristic attributed to the im- 
mortal Newton. The simplicity of his character is 
not more singular than that of his life : pride, os- 
tentation, and hyprocrisy are Greek to him ; and he 
really lives up to the letter and spirit of republicanism, 
while he maintains all the dignity due to his age and 
office. ... I verily believe there is not a particle of 



278 JOHN MARSHALL. 

vanity in his composition, unless it be of that venial 
and hospitable nature which induces him to pride 
himself on giving to his friends the best glass of Ma- 
deira in Virginia. In short, blending as he does the 
simplicity of a child and the plainness of a repub- 
lican with the learning and ability of a lawyer, the 
venerable dignity of his appearance would not suffer 
in comparison with that of the most respected and 
distinguished looking peer in the British House of 
Lords." ^ 

1 Travels in North America, by the Hon. Charles Augustus 
Murray, vol. i. p. 158. 



CHAPTER XV. 

DEATH. 

The death of Chief Justice Marshall, which 
occurred in Philadelphia on the 6th day of July, 
1835, in the eightieth year of his age, created 
a profound impression throughout the country. 
His long career of public service, his extensive 
learning, his clear and massive intellect, his in- 
corruptible integrity, and his profound wisdom, 
united to the simplicity of his character and 
the genial kindness of his disposition and man- 
ners, had made his name a synonym of true 
greatness and himself a favorite with all classes 
of men. Thus his death, though not unex- 
pected, was everywhere deplored as a public 
calamity, and every possible form of respect and 
sympathy was everywhere displayed. 

At the session of the Supreme Court in the 
winter of 1835 it was manifest that his health 
was declining. He suffered much pain through 
the spring, and, at the earnest solicitation of his 
family and friends, he revisited Philadelphia to 
seek the relief which had formerly been afforded 



280 JOHN MARSHALL. 

him by the medical skill of that city. He was 
accompanied by three of his sons; and during 
his illness he received every consolation from 
filial attention, and from the kindness of his 
numerous friends m Philadelphia, who showed 
the deepest interest in his situation, and did all 
in their power for his relief. The famous Dr. 
Physic stated that — 

" The cause of his death was a very diseased con- 
dition of the liver, which was enormously enlarged, 
and contained several tuberculous abscesses of great 
size. Its pressure upon the stomach had the effect 
of dislodging this organ from its natural situation, 
and compressing it in such a manner that for some 
time previous to his death it would not retain the 
smallest quantity of nutriment." ^ 

He was fully conscious of his approaching 
end, which he met with perfect composure. 
His intellect was unclouded to the last moment. 
A few days before his death, and in full view 
of it, he wrote with characteristic modesty the 
following inscription for his tomb : — 

"John Marshall, son of Thomas and Mary Mar- 
shall, was born on the 24th of September, 1755; in- 
termarried with Mary Willis Ambler the 3d of Janu- 
ary, 1783 ; departed this life — day of 18 — ." 

On Monday, the 6th of July, 1835, about 

1 Randolph's Memoir of Dr. Physic, p. 101. 



DEATH. 281 

six o'clock in the evening, he died without a 
struggle. 

The event elicited everywhere manifestations 
of deep sorrow. The citizens of Philadelphia 
assembled in public meeting to express their 
sentiments on the occasion. The venerable 
Bishop White, then in the eighty-eighth year 
of his age, presided, and appropriate resolu- 
tions were adopted. A committee of the Phil- 
adelphia bar accompanied his remains to Rich- 
mond, where they were met by an immense 
procession formed of the military, the judges 
and officers of the courts, the members of the 
bar, the Masonic fraternity, the civil authori- 
ties, and the citizens en masse. Thus the 
funeral cortege was escorted to his residence, 
where the last services were performed by the 
aged and venerated Bishop Moore, of the Epis- 
copal Church, in a fervent and feeling manner. 
He was buried by the side of his wife in what 
was then called the New Burying-G round, now 
Shockhoe Hill Cemetery. As the sad news of 
his decease spread through the country, meet- 
ings were held and resolutions of sympathy and 
sorrow were adopted, not only in the large 
cities and towns, but at the court-houses and 
villages throughout the land. In Richmond 
especially, where he was best kno^vn and most 
loved, the sorrow of the citizens was unbounded. 



282 JOHN MARSHALL. 

As his death occurred during the summei 
vacation of the courts, no opportunity occurred 
to offer in an oflBcial form a memorial tribute 
of respect, until the 23d of November, 1835. 
On that day a meeting of the judges, members 
of the bar, and oflBcers of the Circuit Court of 
the United States for the Eastern District of 
Virginia was held in the court-room in the 
city of Richmond. The Hon. Philip Pendle- 
ton Barbour presided, and a preamble and re- 
solutions were proposed by Benjamin Watkins 
Leigh, Esq., and unanimously adopted. 

The Supreme Court of the United States, 
at its session of January 12, 1836, observed the 
like customary and sad formalities. At the 
meeting Edmund I. Lee, Esq., was chairman, 
General Walter Jones was secretary, Henry 
Clay offered the resolutions, and Judge Story 
spoke concerning his associate, for whom he 
had felt an exceptional affection and admira- 
tion. 

At a meeting of the social club at Buchan- 
an's Spring, when there Was a motion to sup- 
ply the vacancy occasioned by the death of 
Judge Marshall, Mr. B. Watkins Leigh pro- 
posed as appropriate that *' there should be no 
attempt to fill it ever ; but that the number of 
the club should remain one less than it was be. 
fore his death.'* 



DEATH. 283 

The death of the Chief Justice was also ap- 
propriately memorialized by numerous addresses 
and discourses before learned societies and pub- 
lic institutions. Among these, and possessing 
peculiar merit from their elegance and beauty, 
were Judge Story's discourse on his life, charac- 
ter, and services, delivered at the request of 
the Suffolk bar in Massachusetts ; Mr. Horace 
Binney's eulogy, delivered at the request of the 
councils of Philadelphia; and the memoir by 
Mr. Joseph Hopkinson, pronounced before the 
** American Philosophical Society," at Phila- 
delphia. 

Half a century has elapsed since the death of 
Chief Justice Marshall, but there is no token of 
I any waning of the respect and affection enter- 
tained for his memory by the American people. 
Almost as we write these lines, the most recent 
i manifestation of the grateful remembrance of 
' his countrymen is shown in the unveiling, at 
I the national capital, of Story's statue of the 
I great Chief Justice, amid the sincere display 
j of popular enthusiasm. 

, The Commonwealth of Virginia, desirous of 
J perpetuating in some enduring form the mem- 
I ory of her sons, who, under the providence of 
God, were instrumental with their compatriots 
in achieving and consolidating the liberties of 
our country in the great Revolutionary strug- 



284 JOHN MARSHALL. 

gle of 1776, took steps some years ago to erect 
on her Capitol Square in Richmond a colossal 
group of statuary in bronze, surmounted by an 
equestrian statue of Washington, exhibiting 
separately, on a circle of pedestals, the statues 
of Jefferson, Henry, Marshall, Nelson, Lewis, 
and Mason. This design was happily executed 
in part by Thomas Crawford, the American 
eculptor, and completed by Randolph Rogers of 
New York. 



INDEX. 



Adams, John, nominates envoys to 
France in 1797, 101 ; opinion of 
Marshall, 102; message to Con- 
gress concerning relations with 
France, May, 1797, 104; makes 
public the X Y Z transactions, 
125 ; wishes to appoint Marshall 
to bench of Supreme Court, 131 ; 
but appoints Bushrod Washing- 
ton,132 ; action concerning Thomas 
Nash, alias Jonathan Robbins, 142, 
143 ; appoints Marshall to the War 
Department and then to be Secre- 
tary of State, 149, 150 ; satisfaction 
with him, 151 ; story of his "mid- 
night appointments," 156-160; ap- 
points Marshall Chief Justice, 156, 
163; his subsequent gratification, 
164 ; connection with the case of 
Marbury v. Madison, 182. 

Ambler, Jacqueline, father of Mrs. 
Marshall, 48. 

Ambler, Mary Willis, marries Mar- 
shall, 48 ; death, 262. 

Arnold, Benedict, invades Virginia, 
24. 

Baebecue Club, account of, 270. 

Barbour, Philip P. , remark concern- 
ing Westmoreland County, Va., 1 ; 
presides over Virginia Constitu- 
tional Convention, 243 ; presides 
at bar-meeting concerning Mar- 
shaU's death, 282. 

Barlow, Joel, requested by Jeffer' 
son to write a history to counter^ 
act the political influence of Mar- 
shall's Life of Washington, 233. 

Beaumarchais, connection with the 
X Y Z affair, 117-119. 

Bellamy, part played by him in the 
X Y Z negotiation, 108-124 ; disa- 
vowed by TaUejTand, 126, 



Binney, Horace, anecdote quoted 
from his eulogy on Marshall, 12 ; 
remarks concerning the Congress 
of 1799, 138; remarks on Mar- 
shall's speech in case of Nash, 
alias Robbins, 144 ; pronounces 
eulogy on Marshall, 283. 

Blackwood's Magazine, criticism of 
Marshall's Life of Washington, 
239. 

Botts, Benjamin, at the Richmond 
bar, 33 ; engaged in trial of Burr, 
211. 

Burr, Aaron, at first supported by 
Marshall for the Presidency, 153 ; 
story of his career and the doings 
for which he was indicted, 201- 
208 ; arrested, 210 ; subsequent 
legal proceedings, 210, 211 ; mo- 
tion as to admissibility of evidence, 
214 ; motion to summon President 
Jefferson as a witness, 216 ; ac- 
quitted, 229. 

Campbell, Alexander, at the Rich- 
mond bar, 33 ; coimsel in Ware 
V. Hilton, 38 ; sketched by Wirt, 
45. 

Campbell, Archibald, a schoolmas- 
ter, 3. 

ChishoUn v. Georgia, case cited, 
84. 

Clay, Henry, offers resolutions in 
Supreme Court after Marshall's 
death, 282. 

Clinton, Sir Henry, evacuates Phil- 
adelphia, 22. 

Clymer, George, mission from Con- 
gress to Eastern and Southern 
States, 53. 

Cohen v. Virginia, case stated, 198 ; 
quotation from Marshall's opinion, 
199. 



286 



INDEX. 



Dana, Francis, envoy to France, 
101. 

Dartmouth College case ; statement 
of facts, 189-191 ; quotation from 
Marshall's opmion, 191, 192. 

Dexter, Samuel, appomted by Presi- 
dent Adams to the War Depart- 
ment, 150. 

Directory of France, unfriendly be- 
liavior towards the United States, 
102; in connection with the en- 
voys and the X Y Z affair, 106-124. 

Dunmore, Governor, seizure of pow- 
der, 12 ; flight, 13, 14 ; warning 
against the "shirt-men," 14 ; pro- 
claims martial law, 15; engage- 
ment with Col. Woodford's force, 
15-18. 

Edinburgh Review, criticism of Mar- 
shall's Life of Washington, 239. 

Fletcher v. Peck, case cited, 185 ; 
facts of the case, 186; quotation 
from Marshall's opinion, 186-189. 

Gallatin, Albert, in connection 
with the case of Thomas Nash 
alias Jonathan Robbins, 146-148. 

Genet, Edmond. landing in Charles- 
ton and subsequent doings, 94, 95 ; 
recalled, 96. 

Gerry, Elbridge, envoy to France, 
101 ; part played by him in con- 
n e c t i o n with the transactions 
known as the X Y Z aflfah-, 106- 
124 ; remains in Paris after de- 
parture of Marshall and Pinck- 
ney, 124 ; subsequent relations 
with Talleyrand, 126; Jefferson's 
remarks concerning Gerry's stay, 
128. 

Gibbons v. Ogden, quotation from 
Marshall's opinion in this case, 
172-174. 

Gilmer, Francis W., sketch of Mar- 
shall, 66, 170. 

Srayson, William, in Virginia Consti- 
tutional Convention, 65; elected 
to United States Senate, 89. 

Briffin, Cyrus, on the bench at trial 
of Burr, 212. 

Hamilton, Alexander, dissuades 
Marshall from supporting Burr 
instead of Jefferson for the presi- 
dency, 153. 

pautval, connection with the X Y 
Z affair, 114-124; disavowed by 
Talleyrand, 126. 



Hay, George, engaged in trial of 
Burr, 212; motion to commit 
Burr, 214 ; advises no further pro- 
ceedings agamst Burr, 229. 

Henry, Patrick, military movement 
against Governor Dunmore, 12; 
at the Richmond bar, 33 ; coun 
sel in Ware v. Hilton, 38 ; in Vir 
ginia Constitutional Convention 
65, 66, 69, 77, 86 ; concerning case 
of Josiah PhilUps, 70, note ; gen- 
erous vindication of Marshall, 135. 

Hottinguer, part played by him in 
the transactions resulting in the 
X Y Z correspondence, 106-124; 
disavowed by Talleyrand, 126. 

Huntingdon, Countess of, remarks 
concerning the lawyers engaged 
in case of Ware v. Hilton, 38. 

Innes, James, at the Richmond bar, 
33 ; counsel in Ware v. Hilton, 
38 ; in Virginia Constitutional Con- 
vention, (fe. 

Irving, Washington, opinion of Mar- 
shall's Life of Washington, 238. 

Jackson, Andrew, Marshall's rela- 
tions with, 258. 

Jay, John, presides in trial of Ware 
V. Hilton, 88 ; his treaty defended 
by MarshaU, 98. 

Jefferson, Thomas, remarks on case 
of Josiah Phillips, 71 ; leader of 
Anti-Federalists, 94 ; rebukes Ge- 
net, 95 ; irritation at results of 
Marshall's French mission, and 
letter on the subject to Madison, 
127 ; opposes Marshall's election to 
Congress, 134 ; in connection with 
President Adams's " midnight ap- 
pointments," 156-160 ; criticises 
Marshall's opinion in Marbury r. 
Madison, 181, 183; proclamation 
of Burr's conspiracy, 209 ; retains 
writ in Burr's trial, 212 ; indigna- 
tion at ruhng of Marshall that he 
might be summoned as a witness 
in Burr's trial, 222-224 ; personal 
feeling about the trial, 230; re- 
gards Marshall's Life of Washing- 
ton as designed to aid the Feder- 
alists in the presidential election, 
233 ; solicits Barlow to write a 
counteracting volume, 233 ; op- 
posed to Virginia county court 
system, 251. 

Keith, James, maternal grandfather 
of Chief Justice Marshall, 5. 



INDEX. 



287 



Keith, Mary Isham, mother of Chief 

Justice Marshall, 5. 
Kemble, Fanny, Marshall and Judge 

Story go to see her acting, 263. 
King, Rufus, Marshall's instructions 

to him when minister to England, 

152. 

Lee, Charles, counsel in Burr's 
trial, 211. 

Lee, Henry, signature to Declara- 
tion of Independence, 2 ; in Vir- 
ginia Constitutional Convention, 
65 ; drafts resolutions of Congress 
upon Washington's death, 141, n. 

Lee, Richard Henry, elected to 
United States Senate, 89. 

Leslie, General, his invasion of Vir- 
ginia, 24. 

Liancourt, Duke de, remarks con- 
cerning Marshall and Edmund 
Randolph, 47. 

Lincoln, Levi, story of his interrupt- 
ing Marshall in signing President 
Adams's " midnight appoint- 
ments," 156 et seq. 

Madison, Bishop, Marshall attends 
his lectures, 23. 

Madison, James, in Virginia Consti- 
tutional Convention, 65 ; succeeds 
Marshall as Secretary of State, 
156 ; connection with the case of 
Marbury v. Madison, 182; mem- 
ber of State Convention to form 
new Constitution for Virginia, 243 ; 
Miss Martineau's remarks about 
him and Marshall, 276. 

Marbury v. Madison, case of, 181- 
183 ; quotation from Marshall's 
opinion in the case, 184, 185. 

Marshall, Edward C, visit to John 
Adams, and letter to Brooks 
Adams, 1G4 ; letter of John Mar- 
shall to, in 1832, 259. 

Marshall, John, birth and parentage, 
1 ; ancestry, 2 ; his father, 3-5, 6 ; 
his mother, 5 ; his early reading 
and education, 7 ; enrols in a vol- 
unteer company in 1775, 9 ; anec- 
dote, 9-12 ; first lieutenant in a 
Virginia regiment, 13 ; accompa- 
nies Col. Woodford's expedition, 
15-18 ; joins Washington's army in 
the Jerseys, 18 ; promoted to cap- 
taincy, 18 ; in several battles, 19 ; 
in winter quarters at Valley Forge, 
19 ; his courage and temper, 21 ; 
an arbitrator in the disputes of his 
fellow-officers, 21 ; at Monmouth, 



Stony Point, and Powles's Hook, 
22 ; without a command, 23 ; at- 
tends law lectures, etc. , 23 ; re- 
sumes connection with the army, 
24 ; resigns, 24 ; admitted to the 
bar, 25 ; sent to state legislature, 
26 ; early professional career, 26- 
28, 29,32 ; speech concerning state 
judiciary system, 28; removal to 
Richmond, 33 ; member of state 
or executive council, 33 ; general 
in the state militia, 33 ; associates 
and standing at the bar, 33 ; per- 
sonal appearance and manners, 34 ; 
the same as sketched by Wirt, 35 ; 
argument in Ware v. Hilton, the 
British debt question, 37 et seq. ; 
compared with Alex. Campbell, 
45 ; remarks of the Duke de Lian- 
court concerning him, 47 ; his pro- 
fessional income, 47 ; marriage, 

48 ; in Virginia Assembly in 1782, 

49 ; political afiSliations there, 50, 
51, 54-56 ; promotes the cause of 
the officers and soldiers of tlie Rev- 
olution, 52 ; resigns his seat in the 
council, 55 ; reelection to Assem- 
bly from Fauquier County, 55; 
subsequently elected by Henrico 
County, 55; elected to the Vir- 
ginia Convention to act on the 
Constitution of the United States, 
57-62 ; his views, 60 ; his popular- 
ity, 62 ; his part in the deUbera- 
tions, 65-87 ; sketched by Francis 
W. Gilmor, && ; complimented by 
Henry, 86 ; again in the legisla- 
ture, 88; supports the policy of 
Washington, 90, 97 ; retirement 
from political life, 91 ; extensive 
practice at the bar, 92 ; letter to 
Archibald Stuart, 92; subjected 
to political abuse, 97, 98 ; defends 
Jay's treaty, 98 ; reception in Phil- 
adelphia, 99; again sent to the 
State Assembly, 100 ; sent as en- 
voy to France, 101 ; arrival and 
proceedings, 105 ; his part in the 
transactions known as the X Y Z 
afifair, 106-124; connection with 
Beaumarchais's claim, 117-119 ; 
demands his passports, 124 ; leaves 
Paris, 124 ; arrives in New York, 
127; his reception, 127 ; Jefferson's 
comments thereon, 127 ; offered a 
seat on the bench of the Supreme 
Court, 131, 132 ; Adams's estimate 
of him, 132 ; induced by Washing- 
ton to become a candidate for 
Congress, 133 ; visit to Mount Ver- 



288 



INDEX. 



non, 134 ; opposition to his elec- 
tion, 134 ; vindicated by Patrick 
Henry, 135 ; contradicts a cam- 
paign slander, 137 ; elected to Con- 
gress, 138 ; speech in Congress at 
tune of Washington's death, 139 ; 
position in Congress, 142 ; de- 
fends course of President Adams 
concerning Nash alias Robbins, 
144-148; action concerning the 
sedition law, 148 ; resigns seat in 
Congress to become Secretary of 
State, 149 ; appointed Secretary of 
War, but refuses, 150 ; Wolcott's 
remarks concerning the appoint- 
ment, 151 ; satisfies President 
Adams, 151 ; dispatch to Rufus 
King, 152 ; inclines to support 
Burr for Presidency as against 
Jefferson, 153; letter thereon to 
Hamilton, 153; evidence against 
the truth of the story of his share 
in President Adams's "midnight 
appointments," 155-160; requested 
by Jefferson to retain his office 
temporarily, 156 ; made LL.D. by 
New Jersey College, 160 ; ap- 
pointed Chief Justice, 156, 161 ; 
his qualifications, 164-167, 171 ; 
Judge Story's remarks thereon, 
166, 170 ; described by Wirt, 167 ; 
by Story, 108 ; by Webster, 169 ; 
by Francis W. Gilmer, 170 ; quota- 
tion from his opinion in Gibbons v. 
Ogden, 172-174 ; ditto in Ogden v. 
Saunders, 174 ; his theory as to the 
proper method of construing the 
Constitution, 175 eifteq.; his Feder- 
alist tendencies, 179 ; diflBculties 
of his task, 179 ; quotation from 
his opinion in Marbury v. Madi- 
son, 184, 185 ; ditto in Fletchers. 
Peck, 186-189 ; ditto in Dartmouth 
College case, 191-193 ; ditto in 
McCulloch V. Maryland, 194-197 ; 
ditto in Cohen v. Virginia, 199 ; 
presides at trial of Burr, 201 ; pre- 
liminary proceedings in this case, 
210 ; overrules motion to commit 
Burr, 214 ; action concerning the 
subpoena to President Jefferson, 
216-222 ; rulings as to the law of 
treason, 226 ; as to constructive 
presence, 227 ; criticised for his 
conduct of the trial, 230; agrees 
to write Life of George Washing- 
ton, 232 ; acknowledges haste in 
preparation, 235 ; allows his name 
to be printed as author, 236 ; re- 
marks upon some of the criticisms, 



237 ; his fitness for the task, 240 ; 
opposes changing the Virginia Con- 
stitution, 242,250 ; member of the 
Convention for draftmg a new 
Constitution, 243 ; his appearance, 
244 ; suggests a compromise, 245- 
250 ; endeavors to preserve coimty 
court system, 251-253 ; opinions 
concerning slavery and the Coloni- 
zation Society, 255, 256 ; letter to 
Story lamenting States' Rights 
doctrine, 257 ; relations with Gen- 
eral Jackson, 258 : letter to Ed- 
ward C. Marshall, 259 ; on Van 
Buren's nomination as minister to 
England, 260 ; illness, 261 ; death 
of his wife, 262 ; goes to see Mrs. 
Kemble act, 263 : religious opin- 
ions, 264, 2C5, 269 ; anecdote m il- 
lustration, 266 ; his house and 
farms, 208 ; his benevolence, 268, 
209 ; feeUngs towards women, 269 ; 
anecdote, 269 ; member of the 
Barbecue or Quoit Club, 270-273 ; 
the turkey anecdote, 273 ; act of 
generosity, 274 ; Miss Martineau's 
account of him, 275 ; an English- 
man's sketch of him, 277 ; his last 
illness and death, 279-281 ; writes 
his own epitaph, 280 ; funeral, 281 ; 
proceedings in the courts, 282 ; 
other memorials, 282-284. 

Marshall, Thomas, father of the 
Chief Justice, 1 ; sketch of his 
career, 3-5, 6 ; Judge Story's re- 
marks concerning him, 6 ; major 
of a Virginia regiment, 13. 

Martin, Luther, counsel in McCul- 
loch V. Maryland, 194 ; engaged in 
trial of Burr, 211 ; assailed by Jef- 
ferson in course of the trial, 222. 

Martineau, Harriet, remarks about 
Marshall, Story, and Madison, 
275, 276. 

Mason, Gteorge, in Virginia Consti- 
tutional Convention, 65, 83. 

McCrae, Alexander, engaged in trial 
of Burr, 212. 

McCulloch V. Maryland, case cited, 
193; statement of facts, 194 ; Mar- 
shall's opinion, 1&4-197. 

McHenry, James, resigns the War 
Department, 150. 

Meade, Bishop, concerning Mar- 
shall's religious faith, 2&4, 269. 

Monroe, James, in Virginia Con- 
stitiitional Convention, 72-77 ; as 
minister to France, 103 ; member 
of State Convention to form new 

. Constitution for Virginia, 243. 



INDEX. 



289 



Nash, Thomas, case of, 142-148. 
Nicholas, George, in Virginia Consti- 
tutional Convention, 65. 
Nicholas, WiUiam, ditto, 65. 

Ogden v. Saunders, quotation from 
Marshall's opinion in this case, 
174. 

Pabton, James, evidence against his 
story about Marshall's connection 
with Tresideut Adams's "mid- 
night appointments," 156-160 ; 
concerning the summons to Jef- 
ferson as a vpitness in Burr's trial, 
222. 

Pendleton, Edmund, in Virginia 
Constitutional Convention, 65. 

Phillips, Josiah, case of, 70, note. 

Physic, Dr., attends Marshall in his 
last illness, "280. 

Pickering, Timothy, wishes Bushrod 
Washington to be appointed to Su- 
preme Court, 131 ; letter of Ad- 
ams to, 132 ; removed from post 
of Secretary of State, 150. 

Pinckney, C. C, envoy to France, 
101 ; insolently treated by French 
government, 103 ; connection with 
the transactions resulting in the 
X Y Z correspondence, 106-124, 
126 ; obtams permission to remain 
in France, 124. 

Pinkney, William, coimsel in Mc- 
CuUoch V. Maryland, 1^4. 

Quoit Club, accoimt of, 270. 

Randolph, Edmund, at the Rich- 
mond bar, 33 ; mentioned by the 
Duke de Liancourt, 47; in Vir- 
ginia Constitutional Convention, 
65 ; concerning case of Josiah 
Phillips, 70; engaged in trial of 
Burr, 211. 

Randolph, John, remark about the 
Revolutionary minute-men, 13 ; 
foreman of jury at Burr's trial, 
213. 

Robbins, Jonathan, case of, 142-148. 

Rutledge, John, mission from Con- 
gress to Eastern and Southern 
States, 53. 

Slaughter, Lieut. Philip, sketch 
of the winter quarters at Valley 
Forge, 20 ; and of Marshall, 21. 

Bparks, Jared, opinion of Marshall's 
life of Washington, 238. 
19 



Stevens, Edward, lieutenant-colonel 
of Virginia regiment, 13. 

Story, Joseph, remarks concerning 
Col. Thomas Marshall, 6 ; re- 
marks on Marshall's professional 
training, 166, 170 ; description of 
Marshall, 168 ; opinion concern- 
ing Marshall's Life of Washing- 
ton, 237 ; letter of MarshaU to, 
257 ; at dinner with President 
Jackson, 259 ; remarks concern- 
ing Mrs. MarshaU, 262 ; reminis- 
cences of Marshall, 263; Miss 
Martineau's remarks about him 
and Marshall, 275; discourse on 
Marshall, 283. 

Stuart, Archibald, Marshall's letter 
to, 92. 

Swartwout, Col., connection with 
Burr's designs, 206-209. 

Taliaferro, Laurence, colonel of 
Virginia regiment, 13. 

Talleyrand, reception of American 
envoys, 105; dealings with the 
envoys and connection with the 
X Y Z affair, 106-124; insolent 
behavior to Marshall concerning 
passports, 124 ; relations with 
Gerry, 124 ; disavows his agents 
in the X Y Z affair, 125, 126. 

Van Burbn, Martin, nomination as 
minister to England, 260. 

Virginia, invaded by Leslie and by 
Arnold, 24 ; judicial system, 28, 
30-32 ; poverty after the Revolu- 
tion, 53, 54; disaffection towards 
Washington's policy, 90 ; the State 
Constitutions, 242. 

Ware v. Hilton, the ' ' British debt 
case," 37 et seq. 

Washington, Bushrod, appomtment 
to bench of Supreme Court, 131, 
132 ; visit to Mount Vernon with 
Marshall, 133, 134 ; literary execu- 
tor of George Washington, 232; 
urges MarshaU to write life of 
George Washington, 232 ; connec- 
tion with the work, 234, 236. 

Washington, George, unpopularity 
of his policy in Virginia, 90 ; de- 
mands Genet's recall, 96 ; ap- 
pointed commander in chief by 
President Adams, 104 ; offers Mar- 
shaU a seat in his cabinet, also a 
foreign mission, 131 ; desires Mar- 
Bliall to become a candidate for 
Congress, 133, 134 ; friendly letter 



290 



INDEX. 



to Marshall, 138 ; gratification at 
Marshall's election, 138 ; death, 
139 ; proceedings thereon in Con- 
gress, 139-142 ; makes Bushrod 
Washington his literary execu- 
tor, 232 ; life of him written by 
MarshaU, 232-241. 

Washington, George, Marshall's Life 
of, assailed by Jefferson, 233; 
smallness of the subscription list, 
234 ; too hurriedly prepared, 235 ; 
opinions of Story, Sparks, and Ir- 
ving, 237, 238 ; reception in Eng- 
land, 238 ; criticised in Edinburgh 
Review, 239 ; in Blackwood's Mag- 
azine, 240 ; no longer much read, 
241. 

Webster, Daniel, remarks concern- 
ing Marshall, 169 ; in the Dart- 
mouth College case, 190, 191 ; in 
McCulloch V. Maryland, 194. 

Westmoreland, County of, place in 
Virginia history, 2. 

Wickham, John, at Richmond bar, 
33 ; counsel in Ware v. Hilton, 
3S ; engaged in trial of Burr, 211. 



Wilkinson, General, connection with 
Burr, 206-210; deposition, 213; 
as a witness, 214, 225. 

Wirt, William, sketch of Marshall 
in his early days at the Richmond 
bar, 35 ; comparison of Marshall 
and Alexander Campbell, 45 ; 
sketch of Virginia Convention 
summoned to act concerning pro- 
posed Constitution of the United 
States, 64 ; description of Mar- 
shall, 167 ; in the Dartmouth Col- 
lege case, 190, 191 ; in McCulloch 
V. Maryland, 194; retained in 
Burr's trial, 212. 

Wolcott, OUver, letter to Fisher 
Ames on reorganization of Wash- 
ington's cabinet, 152. 

Woodford, Colonel, expedition 
against Dunmore's forces, 15-18. 

Woodford, County of, in Kentucky, 
origin of name, 4. 

Wythe, Chancellor, Marshall at- 
tends his law lectures, 23 ; pre- 
sides at meeting concerning Jay's 
treaty, 98. 






American Statesmen 

Edited by John T. Morse, Jr. 
Each, i6mo, cloth, gilt top, $1.25 ; half polished morocco, 

^2.75. 



BENJAMIN FRANKLIN. By John T. Morse, Jr. 
SAMUEL ADAMS. By James K. Hosmer. 
PATRICK HENRY. By Moses Coit Tyler. 

GEORGE WASHINGTON. By Henry Cabot Lodge. 

2 vols. 
JOHN ADAMS. By John T. Morse, Jr. 
ALEXANDER HAMILTON. By Henry Cabot Lodge. 
GOUVERNEUR MORRIS. By Theodore Roosevelt. 
JOHN JAY. By George Pellew. 
JOHN MARSHALL. By Allan B. Magruder. 
THOMAS JEFFERSON. By John T. Morse, Jr. 
JAMES MADISON. By Sydney Howard Gay. 
ALBERT GALLATIN. By John Austin Stevens. 
JAMES MONROE. By President D. C. Gilman. 
JOHN QUINCY ADAMS. By John T. Morse, Jr. 
I JOHN RANDOLPH. By Henry Adams. 
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LEWIS CASS. By Prof. Andrew C. McLaughlin. 

ABRAHAM LINCOLN. By John T. Morse, Jr. WitF 

Portrait and Map. 2 vols. 
WILLIAM H. SEWARD. By Thornton K. Lothrop. 
SALMON P. CHASE. By Prof. A. B. Hart. 
CHARLES FRANCIS ADAMS. By C. F. Adams. 
CHARLES SUMNER. By Moorfield Storey. 
THADDEUS STEVENS By Samuel W. McCall. 



CRITICAL NOTICES. 



J7P A MfTT rAT ^^ ^^^ managed to condense the whole mats of 
rKJlI\Ii±,ii\> matter gleaned from all sources into his volume 
without losing in a single sentence the freedom or lightness of his 
style or giving his book in any part the crowded look of an epitome. 
— 77ie Independent (New York). 

^AMTTFT jmAM"^ Thoroughly appreciative and sympa- 
^AMUm. JLU/IM:^. ji^g^j^^ ygj £^jj. ^^^^ critical. . . . ^lns 

biography is a piece of good work — a clear and simple presentation 
of a noble man and pure patriot ; it is written in a spirit of candor 
and humanity. — Worcester Spy. 

zrp ATp Y Professor Tyler has not only made one of the best 
* and most readable of American biographies ; he may 
fairly be said to have reconstructed the life of Patrick Henry, and to 
have vindicated the memory of that great man from the unapprecia- 
tive and injurious estimate which has been placed upon it. — JVew 

York Evetimg Post. 

u/" J ^ f^r AT"rn AT ^^- Lodge has written an admirable bio- 
WJi:in.Il\Lrl Ul\. graphy, and one which cannot but confirm 

the American people in the prevailing estimate concerning the Father 

of his Country. — New York Tribune. 

^nrriV ^ nj M^ ^ S^°^ ^^^^^ °^ literary work. ... It cov 
jwniw ^i^^iYiC). gj.g jj^g ground thoroughly, and gives jusl 
the sort of simple and succinct account that is wanted. — New \ork 
Evening Post. 

TT/i MTT TDM ^^" Lodge has done his work with conscien- 
Xi/ilVllj^l Ui\. tious care, and the biography of Hamilton is a 
book which cannot have too many readers. It is more than a bio- 
graphy ; it is a study in the science of government. — St. Paul Piojieer 
Press. 

AfDP J? T^ Mr. Roosevelt has produced an animated and in- 
•^ ^ tensely interesting biographical volume. . . . Mr. 

Roosevelt never loses sight of the picturesque background of poli- 
tics, war-governments, and diplomacy. — Magazine of American His- 
tory (New York). 

c^A Y It is an important addition to the admirable series of 
•^ . *. American Statesmen," and elevates yet higher the charac- 
ter of a man whom all American patriots most delight to honor. — ^ 
New York Tribune. 

TifAp 'sTJA T T "^^ done, with simplicity, clearness, precision, 
/ ^ c>jn/il^J^. and judgment, and in a spirit of moderation a*>d 
eq^uity A valuable addition to the series. — New York tribune. 



__„„r.^iir A singularly just, well-proportioned, and In 
y tL r r H, K >3U 1\ ' teresting sketch of the personal and political 
career of the author of the Declaration of Independence. — Boston 
JournaL 

jlfjnr^nAr '^^^ execution of the work deserves the highest 
MAlyJ-jUIv. pj-ajge_ j^ jg ygj-y teadablc, in a bright and vigor- 
ous style, and is marked by unity and consecutiveness of plan. — Tht 
Nation (New York), 

(^ A r T A TTV ^^ '^^ °"^ °^ ^^ most carefully prepared of thesa 
LrAI^J^/iJ.Jiy. very valuable volumes, . . . abounding in infor- 
mation not so readily accessible as is that pertaining to men more 
often treated by the biographer. — Boston Correspondent Hartford 
Courant. 

\fni\TPn F Pi"esident Oilman has made the most of his hero, 
IVI U 1\ J)^ U -lL . without the least hero-worship, and has done full 
justice to Mr. Monroe's "relations to the public service during half a 
century." . . . The appendix is peculiarly valuable for its synopsis of 
Monroe's Presidential Messages, and its extensive Bibliography of 
Monroe and the Monroe Doctrine. — N. Y. Christian Intelligencer. 

JOHN Q UINCY ADAMS. Sn„''[he mat\r.horJ 

posterity we have very little doubt, and he has set an admirable 
I example to his coadjutors in respect of interesting narrative, just pro* 
j portion, and judicial candor. — New York Evening Post. 

I r» A Amn T PT^ ^^^ book has been to me intensely interesting. 
jy.Jli\uui.rn. i^ i3 ^ich in new facts and side lights, and 

(is worthy of its place in the already brilliant series of monographs 
ion American Statesmen. — Prof. Moses Coit Tyler. 

[JACKSON F*^°^^^^°^ Sumner has ... all in all, made the 
Y "^ • justest long estimate of Jackson that has had itseli 

'put between the covers of a book. — N'ew York Times. 

I y-yjAT n rj/PFAT ^^^^ absorbing book. ... To give any ade- 
^ • quate idea of the personal interest of the book, 

< or its intimate bearing on nearly the whole course of our political 
j history, would be equivalent to quoting the larger part of it. — Brook" 
\lyn Eagle. 

\ CLA V ^^^ ^^^^ '^^ ^^^^ ^^^^ °^ Henry Clay a biography of one oi 
j * the most distinguished of American statesmen, and a po- 

litical history of the United States for the first half of the nineteenth 
century. Indeed, it is not too much to say that, for the period 
01 ^covered, we have no other book which equals or begins to equal this 
life of Henry Clay as an introduction to the study of American poli- 
tics. — /'^'////c^/ 6'^/V;z^^ Quarterly (New York). 

WEBSTFR ^^ ^'^^ ^^ "^^^^ ^y students of history ; it will be 

invaluable as a work of reference ; it will be an 

nuthority as regards matters of fact and criticism; it hits the key- 



JO- 

note of Webster's durable and ever-growing fame ; it is adequate, 
calm, impartial ; it is admirable. — ^Philadelphia /-'?-ess. 

^ A T TTi^ TTPJ Nothing can exceed the skill with which the political 
CAJ^xiU UIW, career of the great South Carolinian is portrayed 
in these pages. . . . The whole discussion in relation to Calhoun's 
position is eminently philosophical and just. — The Dial (Chicago). 

TirATTmV ^"^ interesting addition to our political literature, 
JiJllyJ. L IM. g^^jj ^^jj |-jg q£ great service if it spread an admiiatiou 
for that austere public morality which was one of the marked charac- 
teristics of its chief figure. — The Epoch (New York). 

r /i ^ 9 Professor McLaughlin has given us one of the most satis- 
C^oo. factory volumes in this able and important series. . . . 
The early life of Cass was devoted to the Northwest, and in the 
transformation which overtook it the work of Cass was the work of 
a national statesman. — New York Times. 

J- TT\jf^(^ T AT As a life of Lincoln it has no competitors ; as a 
d^llVi. UJ^IV. political history of the Union side during the Civil 
War, it is the most comprehensive, and, in proportion to its range, 
the most compact. — Harvard Graduates'' Magazine. 

^PWj4PT) '^^^ public will be grateful for his conscientious 
Ci£L W/IKU. gffoj-ts to write a popular vindication of one of the 
ablest, most brilliant, fascinating, energetic, ambitious, and patriotic 
men in American history. — A'ew York Evenifig Post. 

/^TT A azp His great career as anti-slavery leader. United States 
C/z^^o/i. Senator, Governor of Ohio, Secretary of the Treasury, 
and Chief Justice of the United States, is described in an adequate 
and effective manner by Professor Hart. 

CHAIIZES FRANCIS ADAMS. SfcrJ^hf Ov"' w"f; 

and the masterly ability and consummate diplomatic skill displayed 
by him while Minister to Great Britain, are judiciously set forth by 
his eminent son. 

^TTMTVWT? '^^^ majestic devotion of Sumner to the highest po- 
^ UMiyJlK. litical ideals before and during his long term of lofty 
service to freedom in the United States Senate is fittingly delineated 
by Mr. Storey. 

STFVFAT^ T^^^<^^"s Stevens was unquestionably one of the 
^ A^-C/vo. ^^^^ conspicuous figures of his time. . . . The book 
thows him the eccentric, fiery, and masterful congressional leade' 
ttiat he was. — City and State (Philadelphia). 

HOUGHTON, MIFFLIN & CO. 

4 Park St., Boston ; 85 Fifth Avenue, New York. 

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